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Full text of "Documents on prisoners of war"

DOCUMENTS ON 
PRISONERS OF WAR 



For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC. 20402 

Stock No. 008-047-00294-7 



NAVAL WAR COLLEGE 
Newport, R.I. 

INTERNATIONAL LAW STUDIES 



Volume 60 

DOCUMENTS ON 
PRISONERS OF WAR 



edited with annotations by 
Howard S. Levie 

Saint Louis University Law School, Emeritus 



Naval War College Press 

Naval War College 

Newport, Rhode Island 

1979 



NAVAL WAR COLLEGE 
INTERNATIONAL LAW STUDIES 

Volume 60 



Published by the Naval War College Press 

U.S. Naval War College, Newport, Rhode Island 02840 

Library of Congress Catalog Card Number: 78-13530 

Manufactured in the United States of America 



Library of Congress Cataloging in Publication Data 

Main entry under title: 

Documents on prisoners of war. 

(International law studies; v. 60) 

Includes index. 

1. Prisoners of war— Sources. I. Levie, Howard S., 1907-. II. Series: United 

States. Naval War College. International law studies; v. 60. 

JX1295.U4 vol.60 [JX5141] 341s [341. 6'5] 78-13530 



PREFACE 

While working on the manuscript of a volume dealing with the law relative 
to the treatment of prisoners of war (Prisoners Of War In 
International Armed Conflict, Naval War College Press, 1979), I 
discovered that although the great majority of the treatises and articles on 
various aspects of the subject were readily available on the shelves of most 
university and law school libraries, the same could not be said with respect to 
many of the official documents (treaties, agreements, statutes, decrees, 
judicial decisions, military orders, regulations, etc.). In some instances I 
encountered great difficulty, or was even unsuccessful, in identifying an 
available published source for documents of which I had, over the years, 
accumulated copies of the originals in my own files. For others, I located a 
place of publication, but in some esoteric volume which would be found on 
only a very few library shelves. 

This situation led me to consider the possibility of bringing the relevant 
documents together so as to make them readily available in today's libraries. 
The present collection is intended to accomplish that purpose. Documents 
which do not fall within the category of "hard to find" have been included so 
that this volume might be an entity complete in itself. The subject dealt with 
has, of course, evolved over the course of centuries and is still very much in a 
state of evolution. Accordingly, in order to understand the historical impli- 
cations of a particular document it is often absolutely essential to read it in the 
context of the era in which it originally appeared. For this reason the 
methodology employed is one of strict chronology. (When a document 
included herein covers events occurring over a period of time, the beginning 
date has been used for the purposes of the chronology. For lengthy trials the 
date of the rendering of the judgment by the court is used.) 

Each document included herein has a three-part introduction: (1) the 
TITLE; (2) the SOURCE or SOURCES; and (3) a NOTE. Not infrequently, 
there is really no "official" title for an official document. When this is so, I 
have attempted to select the title which appears to be the one most frequently 
used; or, if that was not possible, the most descriptive. The TITLE also 
includes other identifying matter, as appropriate, such as the place where 
signed, the date, the parties, the name of the court, the issuing authority, etc. 

The documents contained herein are from the official records. Where the 
official document has not been found in another published form, the SOURCE 
given is the office or institution in which an original version is held in the 
archives; where the document has been found in only one or two published 
forms, they are given in the SOURCES, even though they may have been 
published in a language other than English; and, where the document has 
appeared in numerous published forms, I have selected a limited number of 
those most widely available in order to make recourse to an entire original as 
simple as possible. Thus, where a particular document has been widely 
published, such as, for example, the 1949 Geneva Prisoner-of-War Con- 
vention, I have limited the citations under SOURCES to a maximum of six 
works and I have selected those which I believe to be the most generally 



available. These SOURCES are: (1) LNTS or UNTS, as appropriate; (2) 
Stat, or UST, as appropriate; (3) Bevans; (4) BFSP; (5) AJIL [Supp.]; and (6) 
Parry. Where one or more of the foregoing is unavailable (Parry's 
tremendous project has, for example, just entered the fourth quarter of the 
nineteenth century), some substitutions have been made, but only where 
deemed necessary. 

Because some of the documents are so extremely difficult to find in their 
official form, and because only the portions of such documents relating to 
prisoners of war have been reproduced herein, unofficial, but reliable and 
more readily available, publications have sometimes been cited as secondary 
sources. However, it must be borne in mind that frequently these secondary 
sources are themselves only extracts of lengthy official documents and it may 
even be that they do not include all of the portions of the original document 
which are reproduced in this volume. Thus while these volumes are excellent, 
and often almost unique sources of material for the researcher, it was felt that 
the abstracts contained therein were often too abbreviated for the purposes 
of this collection of documents. 

It has been assumed that the Resolutions of the Security Council and of the 
General Assembly need no official citation, that given the resolution number, 
the session and the date, anyone having access to any type of United Nations 
document collection will have no need of further information. , However, 
because there are undoubtedly many to whom even a limited collection of 
United Nations documents may not be available, an unofficial source 
(Djonovich, UNITED NATIONS Resolutions) is given. Unfortunately, at this 
writing that set of volumes only covers the period 1945-1971. (A number of 
resolutions adopted by the quinquennial meetings of the International 
Conference of the Red Cross have been included herein, not because they 
have any official significance, but because so often the actions of this 
Conference are harbingers of provisions subsequently to be found embodied 
in international humanitarian conventions — or of the conventions them- 
selves.) 

Finally, all of the documents included herein are presented in English no 
matter what the original language used may have been; and, with rare 
exceptions, the versions cited in the SOURCES are also in English. When the 
only available version was in French, a situation which occurred in only a 
handful of instances, the editor has presumed to act as translator as well. It 
might be well to point out also that footnotes appearing in the originals have 
been omitted. There are no editorial footnotes. 

The NOTE has sometimes been used to give not only the historical back- 
ground of the document, but also to tie it to other related documents; and, 
occasionally, the prerogative of editorial comment has been exercised. 
Finally, when the original document is presented in toto in this collection, it is 
labeled TEXT; when less than the entire document is presented, it is labeled 
EXTRACT or EXTRACTS, as appropriate. 



VI 



If the student of the subject of the law governing the treatment of prisoners 
of war follows these documents through the centuries of recorded history 
which they represent, there can be little doubt that he will observe that there 
has been, on the whole, a fairly steady improvement in the legal status of 
these unfortunates. By unilateral, bilateral, and multilateral acts, nations 
have accepted voluntarily-imposed self-restraints in this area and have made 
commitments for affirmative action which unquestionably exceed self- 
restraints accepted and affirmative commitments made in any other area of 
international law, including other areas of the law of war. This is not to say 
that all nations have at all times complied with the self-restraints so accepted 
and the voluntary commitments so made. A number of documents included 
herein demonstrate gross disregard of legal obligations voluntarily assumed. 
But, hopefully, these are only temporary aberrations and are not indicative of 
a trend. If anything, it will be contended by some that the trend of the 
ongoing lawmaking in this area is moving in the direction of "too far, too fast," 
a process which could, in the long run, result in converting what have been 
the aberrations of a few individual law-defying nations into the customs and 
usages of many nations. At this point in history the great need is not so much 
for the development of new and additional rules protecting prisoners of war 
as it is for the development of methods of ensuring and securing compliance 
with already existing rules. It is the sincere hope of the editor that this 
volume may, in some small part, contribute to that goal by its almost graphic 
display of the promises that nations have made and how, at times, these 
promises have been totally disregarded with little or no reaction on the part of 
the rest of the members of the world community of nations. 

It will be noted that a number of the documents included herein are 
concerned with the subject of war crimes. It has been deemed appropriate to 
include those documents in this volume for two reasons: (1) because prisoners 
of war have been and, unfortunately, will probably continue to be the victims 
of so many conventional war crimes; and (2) because so often the individual 
charged with having committed a conventional war crime will claim to be 
entitled to the status of prisoner of war and to the judicial safeguards which 
accompany that status. (It is for this latter reason that a number of countries 
were, and continue to be, concerned lest reservations to Article 85 of the 1949 
Geneva Prisoner-of-War Convention, such as those made by the members of 
the Communist bloc, were intended to permit a Detaining Power to deny an 
individual the protection of prisoner-of-war status by merely labeling him a 
"war criminal." While the Soviet Union has impliedly denied any such 
intention, this was clearly the policy followed by the Chinese Communists in 
Korea and by the North Vietnamese in Vietnam.) 

Maltreatment of prisoners of war was among the charges preferred in more 
than fifty percent of the war crimes trials conducted after World War II. 
Unfortunately, there are available, in a true sense, only a very limited 
number of reports of those trials. The multi-volumed trial record, opinion, 
and judgment of the International Military Tribunal (the Nuremberg court) 
has been widely printed and is easily found. The comparable record of the 



VII 



International Military Tribunal for the Far East (the Tokyo court) has never 
been printed but it can be found on microfilm and the majority opinion and the 
judgment have been distributed in mimeographed form. The trial records, 
opinions, and judgments of the "Subsequent Proceedings," the trials 
conducted before United States Military Tribunals in Nuremberg pursuant 
to Control Council Law No. 10, have been printed and copies are not difficult 
to locate. But at this point we have just about completed listing the trials as to 
which full coverage is available. There is, of course, the 15- volume set of Law 
Reports of Trials of War Criminals, the invaluable work published by 
the United Nations War Crimes Commission between 1947 and 1949. These 
volumes contain substantial reports of 89 war crimes trials conducted by a 
number of countries after World War II of which 49, or approximately 55%, 
include prisoners of war among the victims of the criminal actions charged 
against the accused. However, these are not really case "reports" as that 
word is normally understood, but are summarizations of the trial records by 
the staff of the Commission. As they are the sole available source of specific 
data with respect to many of the war crimes trials conducted after World War 
II, those involving important legal questions relating to prisoners of war 
have been included herein. Except in the very rare instance where it was 
absolutely essential to an understanding of the case, the so-called "Notes on 
the Case" have been omitted as being merely a personal legal analysis by a 
lawyer on the staff of the Commission and as having no binding legal 
significance. (In all of the war crimes trial reports reproduced herein, any 
discussion of the question of the jurisdiction of the particular tribunal to hear 
the case before it has been omitted where the jurisdictional problem involved 
an issue under domestic law only.) 

One final comment: it is not anticipated that any individual making use of 
this collection of documents will agree entirely with the decisions made by the 
editor as to which documents should be included and which should be omitted. 
However, it is believed that every document in this area which we would all 
agree is of prime importance is included herein; and that we would all agree 
that a substantial number of other documents warranted inclusion. No editor 
can hope for more than that. 

The selection of documents to be included herein and the contents of the 
Notes are, of course, the personal responsibility of the editor and should not 
be construed as representing decisions or opinions of the United States 
Government or of the Department of the Navy. 

Howard S. Levie 
Newport, September 1979 



VIII 



DOCUMENTS ON PRISONERS OF WAR 
TABLE OF CONTENTS 

Preface x 

Table of Documents ix 

Abbreviations xxvi 

Documents 1 

Index 841 



TABLE OF DOCUMENTS 

DOC.NO. date title page 

1 B.C.E. The Bible 1 

2 610-632 A.D. The Qu^an (Koran) 3 

3 1 179 A. D. Decree of the Third Lateran 

Council 4 

4 30 January 1648 Treaty of Peace Between Spain 

and the Netherlands, signed at 
Munster, in Westphalia 5 

5 24 October 1648 Treaty of Peace Between France 

and Her Allies and the Holy 
Roman Empire and Its Allies, 
signed at Munster, in 
Westphalia 6 

6 21 July 1774 Treaty of Kutschuk-Kainardji 

[Kucuk Kainardji], being A 
Treaty of Peace between 
Catherine II, Tsarina of Russia, 
and Abdul-Hamid I, Sultan of 
the Ottoman Empire 7 

7 10 September 1785 Treaty of Amity and Commerce 

between the King of Prussia 

and the United States of 

America (Berlin) 8 

8 4 May 1792 Decree of 4 May 1792 of the 

French National Assembly 
concerning Prisoners of War ... 10 

9 3 August 1792 Decree of 3 August 1792 of the 

French National Assembly 
concerning Prisoners of War 
Captured in Combat 12 

IX 



DOC. NO. DATE 

10 16 September 1792 



11 25 May 1793 



12 4 June 1805 



13 



14 



15 



16 



17 



4 August 1811 
12 May 1813 

24 December 1814 



30 June 1815 



26 November 1820 



18 14 September 1829 



19 24 October 1832 



20 4/5 November 1847 



TITLE PAGE 

Decree of 16 September 1792 of the 

French National Assembly 

concerning the Exchange of 

Prisoners of War 13 

Decree of 25 May 1793 of the French 

National Convention concerning 

a Uniform Method for the 

Exchange of Prisoners [of War] . 14 
Treaty of Peace and Amity 

between the United States of 

America and the Bashaw, Bey, 

and Subjects of Tripoli, 

in Barbary 16 

Imperial Decree of 4 August 1811 

Concerning Prisoners of War and 

Hostages (France) 17 

Cartel for the Exchange of 

Prisoners of War Between Great 

Britain and the United States of 

America 18 

Treaty of Peace and Amity 

between His Britannic Majesty 

and the United States of 

America (Ghent) 23 

Treaty of Peace and Amity Con- 
cluded Between the United 

States of America and His 

Highness Omar Bashaw, 

Dey of Algiers 24 

Convention Between Colombia and 

Spain for the Regularization 

oftheWar(Trujillo) 26 

Treaty of Adrianople, being A 

Treaty of Peace between the 

Emperor of Russia and the 

Emperor of the Ottomans 28 

Opinion of the [British] King's 

Advocate concerning the 

Improper Treatment of 

Prisoners of War (London) 29 

Proclamation od General Guillaume 

H. Dufour during the Swiss Civil 

War of 1847 (The War of the 

Sonderbund) 31 



DOC. NO. DATE 

21 2 February 1848 



22 22 July 1862 



23 


24 April 1863 


24 


22 August 1864 


25 
26 


24 October 1865 
20 October 1868 


27 

28 


27 August 1874 
29 July 1899 


29 


29 July 1899 


30 


31 May 1902 


31 


c. 1902 


32 


6 July 1906 


33 


18 October 1907 



TITLE PAGE 

Treaty of Peace, Friendship, 
Limits, and Settlements 
between the United States of 
America and the United Mexican 
States (Guadalupe Hidalgo) 32 

The "Dix-Hill Cartel" for the 
General Exchange of Prisoners 
of War Entered into between 
the Union and Confederate 
Armies 34 

Instructions for the Government 
of the Armies of the United 
States in the Field (The 
"Lieber Code") 37 

Geneva Convention for the 

Amelioration of the Condition of 

the Wounded in Armies in the 

Field 45 

United States v. Henry Wirz 46 

Additional Articles Relating to the 
Condition of the Wounded of 
Armies in the Field (Geneva) ... 57 

Declaration of Brussels 58 

1899 Hague Convention II with 
Respect to the Laws and 
Customs of War on Land 
(with Annexed Regulations) 61 

1899 Hague Convention III for the 
Adaptation to Maritime Warfare 
of the Principles of the Geneva 
Convention of August 22, 1864 . . 65 

Treaty of Vereeniging (Treaty of 
Peace between the Orange Free 
State and the South African 
Republic with Great Britain) ... 66 

The "Usages of War on Land" 
(Kriegsbrauch im Landkriege) . 67 

Geneva Convention for the 
Amelioration of the Condition 
of the Wounded of the Armies 
in the Field 74 

1907 Hague Convention IV with 
Respect to the Laws and 
Customs of War on Land 
(with Annexed Regulation) 76 



XI 



DOC. NO. DATE 

34 18 October 1907 



35 18 October 1907 



36 18 October 1907 



37 2 July 1917 



38 3 March 1918 



39 



1 July 1918 



40 14 July 1918 



41 



42 



11 November 1918 



11 November 1918 



43 



29 March 1919 



TITLE PAGE 

1907 Hague Convention V 
Respecting the Rights and 
Duties of Neutral Powers and 
Persons in Case of War on Land 81 

1907 Hague Convention X for the 
Adaptation to Maritime Warfare 
of the Geneva Convention 
[of 6 July 1906] 83 

1907 Hague Convention XI 
Relative to Certain Restrictions 
with Regard to the Exercise of 
the Right of Capture in 
Naval War 85 

Agreement between Great Britain 
and Germany Concerning 
Combatant and Civilian 
Prisoners of War (The Hague) . . 86 

Treaty of Brest-Litovsk between 
Germany, Austria-Hungary, 
Bulgaria, and Turkey on the One 
Hand, and Russia on the 
Other, Together with a German- 
Russian Agreement Supplemen- 
tary to the Peace Treaty 94 

General Orders No. 106, General 
Headquarters, American 
Expeditionary Forces, 
France 96 

Agreement between the British 
and German Governments Con- 
cerning Combatant Prisoners of 
War and Civilians (The Hague) . 101 

Conditions of an Armistice 
between the Allied and 
Associated Powers and 
Germany (Compiegne, France) . 114 

Agreement between the United 
States and Germany concerning 
Prisoners of War, Sanitary 
Personnel, and Civilians (Berne) 115 

Report of the Commission on the 
Responsibility of the Authors of 
the [First World] War and on the 
Enforcement of Penalties 158 



XII 



DOC. NO. DATE 

44 28 June 1919 



45 2 February 1920 

46 19 April 1920 



47 19 February 1923 



48 27 July 1929 



49 27 July 1929 



50 



51 



22 June 1940 



16 June 1941 



52 24 December 1941 



53 21 January 1942 



TITLE PAGE 

Treaty of Peace between the Allied 
and Associated Powers, on the 
One Part, and Germany, of the 
Other Part (Versailles) 165 

Treaty of Peace between Russia 
and Esthonia (Tartu, Esthonia) . 169 

Agreement between Germany and 
the Russian Socialist Federal 
Soviet Republic with Regard 
to the Mutual Repatriation of 
Prisoners of War and Interned 
Civilians (Berlin) 171 

Rules of Aerial Warfare Drafted by 
an International Commission of 
Jurists Established by the 
Washington Diplomatic 
Conference on the Limitation of 
Armament (The Hague) 175 

Geneva Convention for the 

Amelioration of the Condition of 
the Wounded and Sick of Armies 
in the Field 176 

Geneva Convention Relative to 
the Treatment of Prisoners 
of War 178 

Armistice Agreement between 
the Chief of the German High 
Command and French Plenipo- 
tentiaries (Forest of 
Compiegne, France) 201 

Regulations Pertaining to 
Prisoners of War: Translation of 
a Collection of Orders Issued by 
the Supreme Command of the 
Wehrmacht from 16 June 1941 to 
15 January 1945 (Berlin) 203 

Agreement between the United 
States and Italy Supplementing 
the 1929 Geneva Prisoner-of- 
War Convention (Berne, 
December 1941 June 1942) 215 

Rex v. Giuseppe and Others (South 
Africa, Supreme Court, 
Trans. Prov. Div.) 224 



XIII 



DOC. NO. DATE 

54 4 March 1942 



55 29 October 1942 

56 1943 

57 9 March 1943 

58 21 April 1943 

59 20 May 1943 

60 3 September 1943 

61 7 October 1943 

62 15 July 1944 

63 19 September 1944 



64 20 January 1945 



TITLE PAGE 

Arrangement between the United 
States of America and Germany 
Respecting Reciprocal Applica- 
tion of the Model Agreement 
concerning Repatriation and 
Hospitalization of Prisoners of 
War annexed to the Convention 
[Relative to the Treatment of 
Prisoners of War] signed at 
Geneva July 27, 1929 
(Washington) 226 

Ex Parte Richard Quirin et al 
(United States Supreme Court) . 229 

Japanese Regulations for the 
Treatment of Prisoners of 
War (Tokyo) 231 

Japanese Disciplinary Law for 

Prisoners of War (Tokyo) 236 

Japanese Detailed Regulations 
for the Treatment of 
Prisoners of War (Tokyo) 239 

Japanese Regulations on the Work 

of Prisoners of War (Tokyo) .... 245 

Military Armistice between the 
Allied Forces and Italy; and 
Instrument of Surrender 
(Sicily) 249 

Rex v. Krebs (Magistrate's Court 
of the County of Renfrew, 
Ontario, Canada) 250 

Rex v. Shindler et al (Police 
Court, Alberta, Canada) 253 

Agreement for an Armistice 
between the Soviet Union and 
the United Kingdom, Acting on 
Behalf of All the United Nations 
at War with Finland, on the One 
Hand, and Finland on the Other 
Hand (Moscow) 256 

Agreement concerning an 
Armistice between the Union of 
Soviet Socialist Republics, the 
United Kingdom of Great Britain 
and Northern Ireland, and the 



XIV 



DOC. NO. 



DATE 



65 11 February 1945 



66 1 March 1945 



67 26 March 1945 



68 8 August 1945 



69 8 October 1945 



70 3 December 1945 



71 7 December 1945 



72 13 December 1945 



TITLE PAGE 

United States of America on One 

Hand and Hungary on the 

Other (Moscow) 257 

Agreement between the United 

States of America and the Union 

of Soviet Socialist Republics 

Respecting Liberated Prisoners 

of War and Civilians Liberated 

by Forces Operating under 

Soviet Command and Forces 

Operating under United States 

of America Command 

(Yalta) 258 

Rex v. Brosig (Court of Appeals, 

Ontario, Canada) 262 

Rex v. Kaehler and Stolski 

(Supreme Court, Appellate 

Division, Alberta, Canada) 269 

Agreement by the Government of 

the United Kingdom of Great 

Britain and Northern Ireland, 

the Government of the United 

States of America, the 

Provisional Government of the 

French Republic and the 

Government of the Union of 

Soviet Socialist Republics for the 

Prosecution and Punishment of 

the Major War Criminals of the 

European Axis (London) 276 

Trial of General Anton Dostler 

(U.S. Military Commission, 

Rome) 285 

Trial of Erich Killinger and Four 

Others (British Military Court, 

Wuppertal, Germany) 291 

Trial of General Tomoyuki 

Yamashita(U.S. Military 

Commission, Manila) 294 

Trial of Nisuke Masuda and Four 

Others (The Jaluit Atoll Case), 

(U.S. Military Commission, 

Kwajalein) 300 



XV 



DOC. NO. DATE 

73 20 December 1945 

74 22 December 1945 



75 19 January 1946 



76 4 February 1946 



77 14 March 1946 



78 


15 April 1946 


79 


10 May 1946 


80 


8 June 1946 


81 


12 July 1946 


82 


25 July 1946 



83 29 July 1946 



84 9 September 1946 



85 30 September 1946 



TITLE PAGE 

Control Council Law No. 10 

(Allied Control Council, Berlin) . 304 
Trial of Erich Heyer and Six Others 

(The Essen Lynching Case) 

(British Military Court, Essen) . 309 
Special Proclamation by the 

Supreme Commander for the 

Allied Powers at Tokyo Estab- 
lishing an International Military 

Tribunal for the Far East; and 

the Tribunal's [Amended] 

Charter 312 

In re Yamashita 

(U.S. Supreme Court) 319 

Trial of Karl Amberger (The 

Dreierwalde Case) (British 

Military Court, Wuppertal, 

Germany) 327 

Trial of Lieutenant General 

Shigura Sawada and Three 

Others (U.S. Military 

Commission, Shanghai) 330 

Trial of Kurt Student (British 

Military Court, Lunenberg' 

Germany) 338 

In re Territo (U.S. Court 

of Appeals, 9th Circuit) 342 

Trial of Tanaka Chuichi and Two 

Others (Australian Military 

Court, New Britain) 344 

Trial of Lieutenant General 

Harukei Isayama and Seven 

Others (U.S. Military 

Commission, Shanghai) 345 

Trial of Generaloberst Nicholaus 

von Falkenhorst (British 

Military Court, Brunswick, 

Germany) 349 

Trial of Lieutenant General Kurt 

Maelzer(U.S. Military 

Commission, Florence) 355 

United States and Others v. 

Herman W. Goering and Others 

(International Military Tribunal, 

Nuremberg, Germany) 357 



XVI 



DOC. NO. DATE 

86 18 October 1946 



87 24 October 1946 



88 11 December 1946 



89 5 February 1947 

90 10 February 1947 

91 16 April 1947 

92 20 May 1947 

93 2 June 1947 

94 19 August 1947 

95 3 September 1947 

96 21 November 1947 



TITLE PAGE 

Ordinance No. 7 of the Military 
Government of Germany, U.S. 
Zone of Occupation (as 
AmendedbyOrdinanceNo.il) . 364 

Rex. v. Perzenowski, Rex. v. Wolf, 
Rex. v. Busch, Rex. v. Mueller 
(Supreme Court, Appellate 
Division, Alberta, Canada) 372 

Resolution 95(1), "Affirmation of 
the Principles of International 
Law Recognized by the Charter 
of the Nurmberg Tribunal," 
adopted by the General 
Assembly of the United Nations 376 

Trial of Tanabe Koshiro (Nether- 
lands Temporary Court-Martial, 
Macassar, Celebes) 378 

Treaty of Peace between the Allied 
and Associated Powers, on the 
One Part, and Hungary, on the 
Other Part (Paris) 380 

United States v. Erhard Milch (The 
Milch Case) (U.S. Military 
Tribunal, Nuremburg) 381 

Rex v. Werner and Another (Union 
of South Africa, Supreme Court, 
Appellate Division) 385 

Trial of Lieutenant-General Baba 
Masao (Australian Military 
Court, Rabaul, New Britain) ... 392 

United States v. Karl Brandt et al 
(The Medical Case) (U.S. 
Military Tribunal, Nuremberg) 394 

Trial of Max Wielen and 17 Others 
(The Stalag Luft II Case) (British 
Military Court, Hamburg) 397 

Resolution 177(11), "Formulation 
of the Principles Recognized in 
the Charter of the Nurnberg 
Tribunal and in the Judgment of 
the Tribunal," adopted by the 
General Assembly of the 
United Nations 407 



XVII 



DOC. NO. DATE 

97 8 April 1947 



98 30 August 1948 



99 30 August 1948 



100 



27 October 1948 



101 



4 November 1948 



102 15 January 1949 



103 



11 March 1949 



104 11 April 1949 



105 



106 



8 August 1949 
12 August 1949 



107 12 August 1949 



TITLE PAGE 

United States v. Otto Ohlendorf 
et al (The Einsatzgruppen Case) 
(U.S. Military Tribunal, 
Nuremberg) 408 

Resolution XIX, "Draft Interna- 
tional Conventions," adopted by 
the XVIIth International Confer- 
ence of the Red Cross 
(Stockholm) 422 

Resolution XXII, "Protests Con- 
cerning Alleged Violations of the 
[1929 Geneva] Conventions," 
adopted by the XVIIth Interna- 
tional Conference of the Red 
Cross (Stockholm) 423 

United States v. Wilhelm von Leeb 
et al (The High Command Case) 
(U.S. Military Tribunal, 
Nuremberg) 424 

United States and Others v. Sadao 
Araki and Others (International 
Military Tribunal for the Far 
East, Tokyo) 437 

Agreement for the Exchange of 
Prisoners of War between the 
Commander-in-Chief, Pakistan 
Army, and the Commander-in- 
Chief, Indian Army 477 

General Armistice Agreements 
between Israel and Egypt, 
Lebanon, Jordan, and Syria, 
respectively 478 

United States v. Ernst von Weiz- 
aecker et al (The Ministries Case) 
(U.S. Military Tribunal, 
Nuremberg) 481 

Resolutions 2, 3, and 9 Adopted by 
the 1949 Geneva Diplomatic 
Conference 497 

Geneva Convention for the Amel- 
ioration of the Condition of the 
Wounded and Sick in Armed 
Forces in the Field 499 

Geneva Convention for the Amel- 
ioration of the Condition of the 



XVIII 



DOC. NO. 



DATE 



108 12 August 1949 

109 12 August 1949 



110 
111 



5 May 1950 
July 1950 



112 22 October 1950 



113 



1 December 1950 



114 12 December 1950 



115 



14 December 1950 



116 
117 



1 July 1951 
July 1951 



118 6 October 1951 



TITLE PAGE 

Wounded, Sick and Shipwrecked 

Members of the Armed Forces 

at Sea 504 

Geneva Convention Relative to the 
Treatment of Prisoners ofWar . 506 

Reservations to the 1949 Geneva 
Prisoner-of-War Convention 
Made by the Soviet Union at the 
Time of Signing (12 August 1949) 
and Adhered to upon Ratification 
(10 May 1954), with an Explana- 
tion (26 May 1955) 551 

Uniform Code of Military Justice of 
the United States (as Amended) 553 

Formulation of the Nurnberg 
Principles by the International 
Law Commission 559 

Trials of Accused War Criminals: 
Rules of Criminal Procedure for 
Military Commissions of the 
United Nations Command 564 

Resolution 382A(V), "Threats to 
the Political Independence and 
Territorial Integrity of Greece," 
adopted by the General 
Assembly of the United Nations 581 

Resolution 488(V), "Formulation of 
the Nurnberg Principles," 
adopted by the General 
Assembly of the United Nations 582 

Resolution 427(V), "Measures for 
the Peaceful Solution of the 
Problem of Prisoners of War," 
adopted by the General 
Assembly of the United Nations 583 

Penal Code of Yugoslavia 585 

Draft Code of Offences Against the 
Peace and Security of Mankind, 
prepared by the International 
Law Commission 586 

Trials of Prisoners of War for Post 
Capture Offenses: Supple- 
mentary Rules of Criminal 
Procedure for Military Commis- 
sions of the United Nations 
Command (as Amended) 588 



XIX 



DOC. NO. DATE 

119 19 October 1951 

120 20 October 1951 

121 23 October 1951 

122 November 1951 

123 6 August 1952 

124 7 August 1952 



TITLE 



PAGE 



125 3 December 1952 



126 11 April 1953 



127 8 June 1953 



Procedure Governing Non-Judicial 
Punishment of Prisoners of War 
of the United Nations Command 607 

Regulations Governing the Penal 
Confinement of Prisoners of War 
of the United Nations Command 610 

Articles Governing United Nations 
[Command] Prisoners of War 615 

Interpretation of the Geneva Con- 
ventions of 1949: Some State- 
ments Adopted by Experts from 
the Nordic Countries 617 

Resolution 21, "Prisoners of War — 
Korea," adopted by the XVIIIth 
International Conference of the 
Red Cross (Toronto) 619 

Resolution 23, "Telegraphic 
Communications (War Victims)," 
adopted by the XVIIIth Interna- 
tional Conference of the Red 
Cross (Toronto) 621 

Resolution 610(VII), "Korea: 
Reports of the United Nations 
Commission for the Unification 
and Rehabilitation of Korea," 
adopted by the General 
Assembly of the United Nations 622 

Agreement between the United 
Nations Command, on the One 
Hand, and the Korean People's 
Army and the Chinese People's 
Volunteers, on the Other Hand, 
Concerning the Exchange of 
Sick and Injured Prisoners of 
War (Panmunjom, Korea) 626 

Agreement between the United 
Nations Command, on the One 
Hand, and the Korean People's 
Army and the Chinese People's 
Volunteers, on the Other Hand, 
concerning Prisoners of War: 
Including the Terms of Reference 
for the Neutral Nations Repatria- 
tion Commission (Panmunjom, 
Korea) 629 






XX 



DOC. NO. DATE 

128 23 July 1953 



129 20 July 1954 



130 24 March 1955 



131 29 July 1955 



132 1955 



133 17 August 1955 



134 1955 



135 September 1955 



136 6 October 1955 



137 28 January 1956 

138 July 1956 

139 7 September 1956 

140 23 July 1957 



141 1958 



TITLE PAGE 

Agreement between the Com- 
mander-in-Chief, United 
Nations Command, on the One 
Hand, and the Supreme Com- 
mander of the Korean People's 
Army and the Commander of the 
Chinese People's Volunteers, on 
the other Hand, Concerning A 
Military Armistice in Korea 
(Panmunjom, Korea) 635 

Geneva Accord: Agreement on 
the Cessation of Hostilities in 
Viet Nam 640 

United States v. Floyd (U.S. Army 
Board of Review) 641 

A Report by the [U.S.] Secretary of 
Defense's Advisory Committee 
on Prisoners of War 
(Washington) 643 

Penal Code of Ethiopia, Provisions 
for the Repression of Violations 
of International Law 647 

Code of Conduct for Members of 
the Armed Forces of the United 
States (as Amended) 648 

Treatment of British Prisoners of 
War in Korea (London) 651 

Model Agreement Relating to the 
Retention of Medical Personnel 
and Chaplains 668 

Thai Act for the Application of the 
1949 Geneva Convention 
Relative to the Treatment of 
Prisoners of War 671 

Re Tassoli (Court of Cassation of 

Italy, United Chamber) 673 

The Law of Land Warfare 

(United States) 675 

United States v. Batchelor (U.S. 
Court of Military Appeals) 685 

Geneva Conventions Act, 1957 
(United Kingdom) 692 

The Law of War On Land 

(United Kingdom) 694 



XXI 



DOC. NO. DATE 

142 25 December 1958 



143 21Junel961 



TITLE 



PAGE 



144 29 November 1961 

145 9 October 1965 



146 9 October 1965 



147 9 October 1965 



148 9 October 1965 



149 9 October 1965 



150 9 October 1965 



151 21 September 1966 



Law of Criminal Responsibility for 
Military Crimes (Union of Soviet 
Socialist Republics) 704 

Opinion of the Judge Advocate 
General of the United States 
Army concerning the Use of 
"Truth Serum" in Questioning 
Prisoners of War 708 

Czechoslovak Penal Law 710 

Resolution XXI, "Implementation 
and Dissemination of the Geneva 
Conventions," adopted by the 
XXth International Conference 
of the Red Cross (Vienna) 711 

Resolution XXII, "Personnel for 
the Control of the Application of 
the Geneva Conventions," 
adopted by the XXth Interna- 
tional Conference of the Red 
Cross (Vienna) 713 

Resolution XXIV, "Treatment of 
Prisoners of War," adopted by 
the XXth International Confer- 
ence of the Red Cross (Vienna) . 715 

Resolution XXV, "Application of 
the Geneva Conventions by the 
United Nations Emergency 
Forces," adopted by the XXth 
International Conference of the 
Red Cross (Vienna) 717 

Resolution XXVI, "Repression of 
Violations of the Geneva Conven- 
tions," adopted by the XXth 
International Conference of the 
Red Cross (Vienna) 719 

Resolution XXVII, "Protests 
Regarding Alleged Violations of 
the Humanitarian Conventions," 
adopted by the XXth Inter- 
national Conference of the 
Red Cross (Vienna) 721 

United States Military Assistance 
Command, Vietnam, Directive 
No. 20-5, Inspections and 
Investigations: Prisoners of War 



XXII 



DOC. NO. 



DATE 



152 5 October 1966 



153 4 December 1967 



154 14 December 1967 



155 27 December 1967 



156 2 July 1968 



157 28 July 1968 



158 13 January 1969 



159 February 1969 

160 13 April 1969 

161 13 September 1969 



162 13 September 1969 



TITLE PAGE 

— Determination of Eligibility 

(as Amended) 722 

Stanislaus Krofan & Anor. v. Public 
Prosecutor (Singapore Federal 
Court) 732 

Public Prosecutor v. Oie Hee Koi 
(and Associated Appeals) (Privy 
Council, United Kingdom) 737 

Resolution 2312(XXII), "Declara- 
tion of Territorial Asylum," 
adopted by the General 
Assembly of the United Nations 747 

United States Military Assistance 
Command, Vietnam, Directive 
No. 381-46, Military Intelligence: 
Combined Screening of 
Detainees 748 

United States v. Staff Sergeant 
Walter Griffin (U.S. Army Board 
of Review) 752 

Mohamad Ali and Another v. Public 
Prosecutor (Privy Council, 
United Kingdom) 757 

Resolution 2444(XXII), "Respect 
for Human Rights in Armed 
Conflicts," adopted by the 
General Assembly of the 
United Nations 767 

Proposed System of Standard 
Telegram Messages To and From 
Prisoners of War 769 

The Military Prosecutor v. Omar 
Mahmud Kassem and Others 
(Israeli Military Court, 
Ramallah) 771 

Resolution XI, "Protection of 
Prisoners of War," adopted by 
the XX 1st International Confer- 
ence of the Red Cross 
(Istanbul) .• . . 781 

Resolution XIII, "Reaffirmation 
and Development of the Laws 
and Customs Applicable in 
Armed Conflicts," adopted by 
the XXIst International Confer- 
ence of the Red Cross (Istanbul) 783 

XXIII 



DOC. NO. DATE 

163 22 September 1970 



164 16 December 1971 



165 11 April 1973 



166 27 January 1973 



167 28 August 1973 



168 14 November 1973 



169 14 November 1973 



TITLE PAGE 

United States Military Assistance 
Command, Vietnam, Directive 
No. 190-6, Military Police: ICRC 
Inspections of Detainee/ 
Prisoner of War Facilities 785 

Instrument of Surrender by the 
Pakistani Eastern Command 
to the Indian and Bangladesh 
Forces 787 

Telegraph Regulations (Geneva, 11 
April 1973) Annexed to the Inter- 
national Telecommunications 
Convention (Malaga — Torrem- 
olinos, 25 October 1973): and 
Recommendations of the Interna- 
tional Telegraph and Telephone 
Consultative Committee 
(Geneva, December 1972) 788 

Agreement on Ending the War and 
Restoring Peace in Vietnam 
between the United States of 
America, The Republic of Viet- 
nam, The Democratic Republic of 
Vietnam, and the Provisional 
Revolutionary Government of 
the Republic of Vietnam; With A 
Protocol concerning the Return 
of Captured Military Personnel 
and Foreign Civilians and De- 
tained Vietnamese Civilian 
Personnel (Paris) 791 

Delhi Agreement between India 
and Pakistan for the Repatriation 
of Prisoners of War 796 

Resolution XII, "Implementation 
and Dissemination of the [1949] 
Geneva Conventions," adopted 
by the XXI Ind International 
Conference of the Red Cross 
(Teheran) 798 

Resolution XIII, "Reaffirmation 
and Development of Interna- 
tional Humanitarian Law 
Applicable in Armed Conflicts," 



XXIV 



DOC. NO. 



DATE 



170 3 December 1973 



171 21 December 1973 



172 9 April 1974 

173 5 July 1974 



174 7 June 1977 



175 10 June 1977 



TITLE PAGE 

adopted by the XXI Ind Inter- 
national Conference of the Red 

Cross (Teheran) 800 

Reservations to the 1949 Geneva 
Prisoner-of-War Convention 
Made by the "Provisional Revolu- 
tionary Government of South 
Vietnam" at the Time of 
Accession 802 

United States v. William L. C alley, 
Jr. (U.S. Court of Military 
Appeals) 804 

Agreement between Bangladesh, 

India, and Pakistan (New Delhi) 817 

Universal Postal Convention, Part 
I. Rules Applicable in Common 
Throughout the International 
Postal Service (Lausanne) 820 

Resolution 21, "Dissemination of 
Knowledge of International 
Humanitarian Law Applicable in 
Armed Conflicts," adopted by 
the Diplomatic Conference on the 
Reaffirmation and Developoment 
of International Humanitarian 
Law Applicable in Armed 
Conflicts (Geneva) 822 

Protocol I Additional to the Geneva 
Conventions of 12 August 1949, 
and Relating to the Protection of 
Victims of International Armed 
Conflicts (Geneva) 824 



XXV 



ABBREVIATIONS 



A.C. 

AJIL [Supp.] 

A11E.R. 
Ann. Dig. 

Bevans 

BFSP 
Can. C.C. 
CMR 
DeClercq 
Djonovich 
D.L.R. 
Fed. Reg. 
F.2d 

F. Supp. 
Final Record 

For. Rel. 

Friedman 

German Regulations 



ICRC 

ILM 

ILR 



IMT 

IMTFE 

IRRC 
Israel 

JAGW 

LNTS 



Law Reports (Appeal Cases) [United Kingdom] 
American Journal of International Law 

[Supplement] 
All England Law Reports 
Annual Digest and Reports of Public Inter- 
national Law Cases (renamed International 

Law Reports since 1950: see ILR) 
Treaties and Other International Agreements of 

the United States of America, 1776-1949 
British and Foreign State Papers 
Canadian Criminal Cases 
Court-Martial Reports [United States] 
Recueil des traites de la France 
United Nations Resolutions 
Dominion Law Reports [Canada] 
Federal Register [United States] 
Federal Reporter, Second Series 

[United States] 
Federal Supplement [United States] 
Final Record of the Diplomatic Conference of 

Geneva of 1949 
Foreign Relations of the United States 
The Law Of War: a Documentary History (1972) 
Regulations Pertaining to Prisoners of War: 

Translation of a Collection of Orders Issued 

by the Supreme Command of the Wehrmacht 

from 16 June 1941 to 15 January 1945 

(prepared in the Office of the Provost Marshal 

General of the United States Army) 

(mimeo., 1945) 
International Committee of the Red Cross 
International Legal Materials 
International Law Reports (formerly known as 

Annual Digest and Reports of Public Interna- 
tional Law Cases) 
Trial of the Major War Criminals before the 

International Military Tribunal (1947) 
Judgment of the International Military Tribunal 

for the Far East (mimeo., 1948; microfilm) 
International Review of the Red Cross 
Major Peace Treaties of Modern History, 1648- 

1967(1967) 
Opinions of The Judge Advocate General of the 

United States Army (typed) 
League of Nations Treaty Series 



XXVI 



LRTWC 

Malloy 



M.L.J. 
M.L. Rev. 
[1965] Measures to 
Repress 



Miller 

NWC 

Parry 

Pictet, Commentary 

RGDIP 
RICR 
S.A.L.R. 
Santa Clara Law. 
Schindler & Toman 



Stat. 
TIAS 

TWC 

U.S. 

U.S.C. 
USCMA 

UNTS 
UST 

WM. & Mary L. Rev. 
W.W.R. 



Law Reports of Trials of War Criminals 

Treaties, conventions, international acts, 
protocols, and agreements between the 
United States of America and other Powers, 
1776-1937 

Malayan Law Journal 

Malayan Law Review 

Respect of the Geneva Conventions: Measures 
taken to Repress Violations. Report sub- 
mitted by the International Committee of the 
Red Cross to the XXth International Con- 
ference of the Red Cross, Vienna, 1965. Conf. 
D. 4 a/1 

Treaties and Other International Acts of the 
United States of America 

United States Naval War College, International 
Law Documents 

Consolidated Treaty Series 

Commentary on the Geneva Convention Rela- 
tive to the Treatment of Prisoners of War 

Revue general de droit international public 

Revue internationale de la Croix-Rouge 

South African Law Reports 

Santa Clara Lawyer 

The Laws of Armed Conflicts: A Collection of 
Conventions, Resolutions and Other 
Documents (1973) 

United States Statutes at Large 

Treaties and Other International Act Series 
[United States] 

Trials of War Criminals before the Nuernberg 
Military Tribunals 

Reports of the Supreme Court of the 
United States 

United States Code 

Reports of the United States Court of 
Military Appeals 

United Nations Treaty Series 

United States Treaties and other International 
Agreements (1950- ) 

William and Mary Law Review 

Western Weekly Reports [Canada] 



XXVII 



DOCUMENT NO. 1 

THE BIBLE 
(B.C.E.) 

SOURCE 
The Bible (King James Version) 

NOTE 
In biblical days capture by the enemy usually meant death. This was the 
almost universal rule with regard to men and it was frequently the rule with 
regard to women and children. The extracts from the Bible given below are 
indicative of the general low value placed upon human life which prevailed 
throughout the world of that time period to the extent that history was being 
recorded. 

EXTRACTS 
NUM. 31:7-8 

7 And they warred against the Midianites, as the LORD commanded Moses, 
and they slew all the males. 

8 And they slew the kings of Midian, beside the rest of them that were slain; 
namely, Evi, and Rekem, and Zur, and Hur, and Reba, five kings of Midian; 
Ba'llaam also the son of Beor, they slew with the sword. 

DEUT.3:3and6 

3 So the LORD our God delivered into our hands Og also, the king of Bashan, 
and all his people, and we smote him until none was left to him remaining. 

6 And we utterly destroyed them, as we did unto Sihon, king of Heshbon, 
utterly destroying the men, women, and children of every city. 

DEUT. 20:16-17 

16 But of the cities of these people, which the Lord thy God doth give thee 
for an inheritance, thou shalt save alive nothing that breathe th, 

17 But thou shalt utterly destroy them; namely, the Hittites, and the 
Amorites, the Ca'naanites, and the Periz'zites, the Hivites, and the 
Jebusites, as the LORD thy God hath commanded thee, 

JOSH. 6:20-21 

20 So the people shouted when the priests blew the trumpets; and it came to 
pass, when the people heard the sound of the trumpet, and the people shouted 
with a great shout, that the wall fell down flat, so that the people went up into 
the city, every man straight before him, and they took the city. 

21 And they utterly destroyed all that was in the city, both man and 
woman, young and old, and ox, and sheep, and ass, with the edge of the 
sword. 



1 SAM. 15:3 

3 Now go and smite Am'alek, and utterly destroy all that they have, and 
spare them not; but slay both man and woman, infant and suckling, ox and 
sheep, camel and ass. 

But see 

2 KINGS 6:21-23 

21 And the king of Israel said unto Elisha, when he saw them, My father, 
shall I smite them? 

22 And he answered, Thou shalt not smite them. Wouldest thou smite those 
whom thou hast taken captive with thy sword and with thy bow? Set bread 
and water before them, that they may eat and drink, and go to their master. 

23 And he prepared great provision for them. And when they had eaten and 
drunk, he sent them away, and they went to their master. So the bands of 
Syria came no more into the land of Israel. 



DOCUMENT NO. 2 

THE QURAN (KORAN) 

(610-632 A.D.) 

SOURCE 
The Holy Qur'an (Maulawi Sher'Ali trans.) 

NOTE 
The Qur'an, or Koran, is the record of the revelations received by 
Muhammad, the Holy Prophet of Islam, from Allah (God) during the period 
from 610 to 632 A.D., first at Mecca (610-622 A.D.) and then, after the flight 
from Mecca (the "Hijira" or "Hejira), at Medina (622-632 A.D.). It is the Holy 
Book of the Muslim religion. While in many respects it was as implacable as 
the Bible, it contained admonitions which served as a basis for humanitarian 
interpretations by Muslim scholars long before such an attitude is to be found 
in the works of Christian scholars. (See DOCUMENT NO. 3). 

EXTRACTS 
47:5. And when you meet in regular battle those who disbelieve, smite their 
necks; and, when you have overcome them, bind fast the fetters — then 
afterwards either release them as a favor or by taking ransom — until the 
war lays down its burdens. That is the ordinance. . . . 

76:9. And they feed, for love of Him, the poor, the orphan, and the prisoner. 

[A tradition quotes the Prophet Muhammad as saying: 

Prisoners are your brethren. It is the grace of God that they are in your 
hands. Since they are at your mercy, treat them as you would treat yourself 
as regards food, clothing, and shelter. Do not demand of them a labour which 
exceeds their strength; help them rather in what they have to do.] 



DOCUMENT NO. 3 

DECREE OF THE THIRD LATERAN COUNCIL 

(1179) 

SOURCE 

5(2) Hefele, Histoire des Conciles de l'Eglise 

1105 (DeClercq French trans., 1913) 

NOTE 
The statement is frequently made that during the Crusades the Catholic 
Church, acting through the agency of the Third Lateran Concilium, issued a 
ban against the practice of making slaves of prisoners of war of the Catholic 
faith. Actually, the pertinent decree, or capitula, of that Council, which met 
in Rome in March 1179 at the call of Pope Alexander III, was far less 
all-encompassing than is usually believed. 

EXTRACT 
Can. 24 
It has unfortunately occurred that Christians have delivered to the 
Saracens arms, iron, and wood for the construction of vessels, that they have 
given assistance to the Saracens in the latters' wars against the Christians, 
and that they have taken service on the vessels of the Saracen pirates. All 
those who have so acted are excommunicated, their property shall be 
confiscated by the lay princes, and, if they are captured, they shall be reduced 
to slavery. The sentence of excommunication pronounced against them shall 
be published in all the ports. There shall also fall under the ban of 
excommunication all those who make prisoners of war of, or who rob, 
Christian sailors as well as those who pillage shipwrecked Christians instead 
of assisting them. 



DOCUMENT NO. 4 

TREATY OF PEACE BETWEEN SPAIN AND THE NETHERLANDS, 
SIGNED AT MUNSTER, IN WESTPHALIA, ON 30 JANUARY 1648 

SOURCE 
1 Parry 70 

NOTE 
This was the earliest of the series of treaties entered into at Osnabruck and 
Munster, in Westphalia, during 1648 which brought to an end the Thirty 
Years' War. (See also DOCUMENT NO. 5.) 

EXTRACT 
LXIII. All prisoners of war shall be delivered up by both sides, without the 
payment of any ransom, and without any distinction and without exception 
with respect to the prisoners who served outside of the Low Countries and 
under other standards and flags than those of the said Sovereign States. 



DOCUMENT NO. 5 

TREATY OF PEACE BETWEEN FRANCE AND HER ALLIES AND 

THE HOLY ROMAN EMPIRE AND ITS ALLIES, SIGNED AT 

MUNSTER, IN WESTPHALIA, ON 24 OCTOBER 1648 

SOURCES 
1 Parry 319 
1 Israel 7 

NOTE 
This was the most important of the series of treaties entered into at 
Osnabruck and Munster, in Westphalia, during 1648, which brought to an end 
the Thirty Years' War and rewrote the map of Europe. (See also 
DOCUMENT NO. 4.) 

EXTRACT 

CX. Moreover, all prisoners on the one side and the other, without any 
distinction of the Gown or Sword, shall be released after the manner it has 
been convenanted, or shall be agreed between the Generals of the Armys, 
with His Imperial Majesty's Approbation. 



DOCUMENT NO. 6 

TREATY OF KUTSCHUK-KAINARDJI [KUCUK KAINARDJI], BEING 

A TREATY OF PEACE BETWEEN CATHERINE II, TSARINA OF 

RUSSIA, AND ABDUL-HAMID I, SULTAN OF THE OTTOMAN 

EMPIRE (21 July 1774) 

SOURCES 
2 Israel 913 
45 Parry 349 

NOTE 
This treaty ended a war (one of many) between Russia and Turkey which 
had begun in 1768. The provision concerning prisoners of war who had 
changed their religion is typical of a number of such treaties entered into by 
the Ottoman Empire with Christian countries, especially Russia, over a 
period of years during the latter part of the eighteenth century and the early 
part of the nineteenth. (See, for example, DOCUMENT NO. 18.) The 
original treaty was signed in French and Italian versions only. 

EXTRACT 
Article XXV 
All prisoners of war and slaves of both sexes, of whatever dignity and rank, 
who are now in the two Empires, except for those who, being Moslems, have 
voluntarily embraced the Christian Religion in the Russian Empire, and 
those, being Christians, who have voluntarily embraced the Moslem Religion 
in the Ottoman Empire, immediately after the ratification of this Treaty shall 
be liberated with no ransom or payment, with no pretexts advanced. 
Likewise, all other Christians who have fallen into slavery, Poles, 
Moldavians, Wallachians, Peloponesians, inhabitants of the islands, and 
Georgians, in whatever number they may be, shall be liberated without the 
least exception, with no ransom or payment. 



8 

DOCUMENT NO. 7 

TREATY OF AMITY AND COMMERCE BETWEEN THE KING OF 

PRUSSIA AND THE UNITED STATES OF AMERICA 

(Berlin, 10 September 1785) 

SOURCES 

8 Stat. 84 

8 Bevans 78 
49 Parry 331 

2 Malloy 1477 

NOTE 

This treaty, one of the earliest to which the United States was a Party, was 
negotiated by Benjamin Franklin, Thomas Jefferson, and John Adams. (Its 
ratification by the United States was delayed "for want of a proper number of 
States in Congress.") It was most unusual for the era in which it was 
negotiated in that, although a treaty of amity and commerce, entered into 
when the Parties were friends and at peace with each other, it contained a 
lengthy and completely novel article which, in effect, constituted an 
agreement for the protection of prisoners of war should the two countries, 
Prussia and the United States, find themselves at war with each other during 
the effective period of the treaty. (For a 20th-century German comment on 
the provision given below, see DOCUMENT NO. 31.) Identical provisions 
were contained in Article XXIV of the Treaty of Berlin of 11 July 1799 
between the same Parties (8 Stat. 162; 8 Bevans 88; 15BFSP 894; 55 Parry 
15). Although this latter treaty expired on 22 June 1810, the Treaty of 
Washington of 1 May 1828 (8 Stat. 378; 8 Bevans 98; 15 BFSP 874; 78 Parry 
279) revived, among others, Article XXIV thereof, "with the same force and 
virtue, as if they made part of the context of the present treaty"; and the 1828 
Treaty remained in force between the United States and Germany, the 
successor State of Prussia, until it lapsed pursuant to the provisions of 
Article 289 of the 1919 Treaty of Versailles (sources at DOCUMENT NO. 44) 
as carried into effect for the United States by Article 2 of the 1921 Treaty of 
Berlin (42 Stat. 1939; 8 Bevans 145; 114 BFSP 828; 16 AJIL Supp. 10). 
Accordingly, during World War I General Pershing properly considered that 
the provisions set forth below were applicable to German prisoners of war 
captured by the United States armed forces (see DOCUMENT NO. 39). 

EXTRACTS 
ARTICLE XXIV 

And to prevent the destruction of prisoners of war, by sending them into 
distant and inclement countries, or by crouding them into close and noxious 
places, the two contracting parties solemnly pledge themselves to each other, 
and to the world, that they will not adopt any such practice; that neither will 
send the prisoners whom they may take from the other into the East-Indies, 



Document #7 cont. 

or any other parts of Asia or Africa, but that they shall be placed in some part 
of their dominions in Europe or America, in wholesome situations; that they 
shall not be confined in dungeons, prison-ships, nor prisons, nor be put into 
irons, nor bound, nor otherwise restrained in the use of their limbs; that the 
officers shall be enlarged on their paroles within convenient districts, and 
have comfortable quarters, and the common men be disposed in cantonments 
open and extensive enough for air and exercise, and lodged in barracks as 
roomly and good as are provided by the party in whose power they are for 
their own troops; that the officers shall also be daily furnished by the party in 
whose power they are, with as many rations, and of the same articles and 
quality as they are allowed by them, either in kind or by commutation, to 
officers of equal rank in their own army; and all others shall be daily furnished 
by them with such ration as they allow to a common soldier in their own 
service; the value whereof shall be paid by the other party on a mutual 
adjustments of accounts for the subsistence of prisoners of at the close of the 
w T ar; and the said accounts shall not be mingled with, of set off against any 
others, nor the balances due on them, be withheld as a satisfaction or reprisal 
for any other cause, real or pretended, whatever; that each party shall be 
allowed to keep a commissary of prisoners of their own appointment, with 
every separate cantonment of prisoners in possession of the other, which 
commissary shall see the prisoners as often as he pleases, shall be allowed to 
receive and distribute whatever comforts may be sent to them by their 
friends, and shall be free to make his reports in open letters to those who 
employ him; but if any officer shall break his parole, or any other prisoner 
shall escape from the limits of his cantonment, after they shall have been 
designated to him, such individual officer or other prisoner, shall forfeit so 
much of the benefit of this article as provides for his enlargement on parole or 
cantonment. And it is declared, that neither the pretence that war dissolves 
all treaties, nor any other whatever, shall be considered as annulling or 
suspending this and the next preceeding article; but, on the contrary, that the 
state of war is precisely that for which they are provided, and during which 
they are to be as sacredly observed as the most acknowledged articles in the 
law of nature or nations. 



ARTICLE XXVII. 
His Majesty the King of Prussia, and the United States of America, agree, 
that this treaty shall be in force during the term of ten years from the 
exchange of ratifications; and if the expiration of that term should happen 
during the course of a war between them, then the articles before provided 
for the regulation of their conduct during such a war, shall continue in force 
until the conclusion of the treaty which shall re-establish peace; and that this 
treaty shall be ratified on both sides, and the ratifications exchanged within 
one year from the day of its signature. 



10 

DOCUMENT NO. 8 

DECREE OF 4 MAY 1792 OF THE FRENCH NATIONAL ASSEMBLY 
CONCERNING PRISONERS OF WAR 

SOURCE 
lDeClercq217 

NOTE 
This Decree was enacted by the French National Assembly on 4 May 1792, 
just two weeks after the Assembly had declared war on Austria and Prussia 
and when war with other European monarchies, deeply concerned lest the 
revolutionary developments in France overflow into their realms, could 
readily be forseen. The Decree typifies the attitude since then frequently 
adopted by revolutionary regimes in an effort to demonstrate their hu- 
manitarian motivation, and in this case, in the hope that its promulgation 
would convince enemy soldiers that their future lay with the French 
Revolution and would thus encourage them to desert and surrender. It was 
undoubtedly inspired by the writings of Montesquieu and Rousseau. 

TEXT 

The National Assembly, 

Desiring, at the commencement of a war undertaken for liberty, to regu- 
late, in accordance with justice and humanity, the treatment of enemy sol- 
diers whom the fortunes of war place in the power of the French nation: 

Considering that under the terms of the Declaration of Rights [of Man and 
of the Citizen of 26 August 1789], when society is forced to deprive an 
individual of his liberty, all harshness which is unnecessary to retain him in 
custody ought to be severely repressed by the law: 

Recognizing that this principle is particularly applicable to prisoners of war 
who, not having come under the civil power of the nation voluntarily, remain 
under the protection of the natural law of man and of nations, 

Decrees that there is an emergency. 

The National Assembly, after having decreed an emergency, decrees as 
follows: 

1. Prisoners of war are under the protection of the French nation. 

2. All cruel acts, all violence, and all insults committed against a prisoner 
of war shall be punished as if committed against a French citizen. 

3. All prisoners of war shall be transported to special places in the rear of 
the army for which purpose the commanding generals shall have designated 
specific areas. 

4. They shall thereafter be kept in the interior of the kingdom, at a 
distance of at least twenty leagues from any frontier, and they shall be kept 
primarily in the county seats and closed towns. 

5. There shall be provisionally allocated to them for their maintenance, 



11 



Document #8 cont. 

from extraordinary war funds, the full peacetime pay and allowances 
received by corresponding grades of the French infantry. 

6. Prisoners of war shall be permitted to give, in the presence of municipal 
officials, their parole not to leave the place of residence to which they have 
been assigned; and in such a case, the entire town shall be the limits of their 
confinement and they shall not be subject to the roll calls which may be fixed 
by specific regulation. 

7. Those who, apart from their parole, furnish security, shall only be 
required to present themselves for one roll call each day, without the right, 
nevertheless, to go more than two leagues beyond the limits of the town. 

8. All prisoners of war shall be required to be dressed in their uniforms and 
may not, under any circumstances, possess or carry arms. 

9. Those who do not give the security and refuse the parole mentioned in 
article 7 shall be held in closed national installations. 

10. Those who, having given their parole or furnished security, disregard 
the obligations which are imposed upon them by articles 7, 8 and 9, shall be 
brought before a police correctional tribunal and shall be sentenced to remain 
in prison for a period of time based upon the gravity of the circumstances and 
which may be indefinite if an attempt to escape is proven. 

11. Prisoners of war shall enjoy, in addition, the benefits of the common 
law of France; they may engage in any profession upon complying with the 
conditions prescribed by law; they shall be brought before the ordinary courts 
in case of the commission of a crime, tried there for acts of mutiny, and receive 
there reparations for injuries or damages for which they have a complaint. 

12. The executive power shall present, as soon as possible, a set of reg- 
ulations on the places to which prisoners of war shall be transferred, on the 
method of their transfer, on the number who may be sent to the same place, 
on the manner in which they shall be watched over and guarded, on the roll 
calls which shall be required of those who enjoy the benefits of articles 7 and 8, 
on the policing of the buildings in which those who do not enjoy this privilege 
shall be held, on the correspondence of all prisoners of war addressed to 
foreign lands; and, in sum, with all of the methods of executing the present 
decree. 

13. The present decree shall be effective immediately. 



12 

DOCUMENT NO. 9 

DECREE OF 3 AUGUST 1792 OF THE FRENCH NATIONAL 
ASSEMBLY CONCERNING PRISONERS OF WAR CAPTURED IN 

COMBAT 

SOURCE 
lDeClercq219 

NOTE 
This is another of the several Decrees adopted by the French National 
Assembly in 1792, shortly after revolutionary France had gone to war with 
Austria and Prussia. (See DOCUMENT NO. 8 and DOCUMENT NO. 10) In 
true revolutionary spirit the legislation, which provided for reprisals for the 
maltreatment of French prisoners of war by the enemy, excluded common 
soldiers from being the object of these reprisals. One other major purpose of 
the legislation was to make clear the French insistence upon the recognition 
of the military status, and entitlement upon capture to all prisoner of war 
protections, of members of the various volunteer units which had just been 
brought into being. This was a comparatively new problem inasmuch as 
previously the military had more often than not been professionals and the 
question of entitlement to such status and protection had rarely arisen. 



TEXT 

The National Assembly, 

Considering that officers and soldiers of the voluntary national guard and of 
the local national guards of the various communities are, like the officers and 
soldiers of the regular army, armed by virtue of the law for the defense of 
liberty; considering that they ought, as a consequence, when they are cap- 
tured in combat, to be treated according to the rules established between 
nations concerning prisoners of war; and wishing, at the same time, to ensure 
the security of French citizens, to maintain equality of rights between com- 
munities, and not to deviate from the sacred laws of humanity. 

Decrees that there is an emergency; and further decrees as follows: 

1. Foreigners taken in combat shall be treated in accordance with the 
Decree of 4 May [1792]. In any case in which the customary law of war shall 
have been violated by the enemy Powers, every member of the foreign 
nobility, every officer, and every general, whatever may be his status and his 
title, who shall be taken prisoner in combat against the French nation, shall 
be treated in the same manner as their nations have treated French citizens, 
including the officers and soldiers of the voluntary battalions, of the local 
national guard, and of the regular army, captured in combat. 

2. In all cases the common soldiers of the enemy forces shall be treated in 
accordance with the customary rules of war. 



13 

DOCUMENT NO. 10 

DECREE OF 16 SEPTEMBER 1792 OF THE FRENCH NATIONAL 
ASSEMBLY CONCERNING THE EXCHANGE OF PRISONERS OF 

WAR 

SOURCE 
1 DeClercq 219 

NOTE 
Nowhere was the egalitarianism of the French Revolution better dem- 
onstrated than in this Decree which terminated, as far as revolutionary 
France was concerned, the practice common to prisoner-of-war exchange 
agreements of evaluating officers and noncommissioned officers as equal to a 
specified number of enlisted men. (See, for example, Article First of the 1813 
Cartel between Great Britain and the United States, DOCUMENT NO. 14.) 
This Decree was reenacted on 25 May 1793 in a greatly enlarged form by the 
successor legislative body, the National Convention (DOCUMENT NO. 11). 



TEXT 

The National Assembly, 

Considering the necessity of being able to exchange prisoners of war as 
promptly as possible, and to respond with the utmost alacrity on behalf of 
those of our brothers-in-arms who, in fighting for the nation, have fallen into 
the hands of the enemy; 

Considering that the basis upon which the executive power or the generals 
of the army enter into treaties, conventions, or agreements ought to be 
founded upon the principles of liberty and equality; 

Decrees as the principle for the exchange of prisoners of war: 

1. There shall be no monetary table for exchange, according to different 
grades, except in terms relative to the corresponding grades in the enemy 
armies. 

2. There shall be no table of exchange under which an officer or non- 
commissioned officer, of whatever grade he may be, is to be exchanged 
against a greater number of individuals of lower grade. 

3. The common basis for the exchange of prisoners of war, which no 
modification may alter, shall be to exchange man for man, grade for grade. 



14 
DOCUMENTNO.il 

DECREE OF 25 MAY 1793 OF THE FRENCH NATIONAL CON- 
VENTION CONCERNING A UNIFORM METHOD FOR THE EX- 
CHANGE OF PRISONERS [OF WAR] 

SOURCE 
1 DeClercq 225 

NOTE 
As will easily be seen, this Decree of the French National Convention goes 
far beyond the subject matter referred to in its title. While it continues the 
egalitarianism of the Decree of 16 September 1792 (DOCUMENT NO. 10), 
enacted by its predecessor legislative body, the National Assembly, the 
present Decree makes it clear in several places that French implementation 
thereof will depend entirely upon reciprocity by the enemies of France; and 
even the common soldier can only expect to receive the basic benefits of this 
statute if his country provides them for French prisoners of war held by it. 
(The 1949 Geneva Prisoner-of-War Convention (DOCUMENT NO. 108) 
eschews reciprocity as a requirement for compliance by either side. There is a 
growing body of evidence that this may well have been a mistake.) 

EXTRACTS 

1. There shall be no monetary table for the exchange of prisoners of war. 

2. There shall be no table of exchange under which an officer or non- 
commissioned officer, of whatever grade he may be, is to be exchanged 
against a greater number of individuals of a lower grade. 

3. The common basis for the exchange of prisoners of war, which no 
modification may alter without the express consent of the National Con- 
vention, shall be to exchange man for man, grade for grade. 

4. No exchange shall be made except after a list has been prepared 
containing the names and grades of the prisoners to be exchanged. 

5. Individuals who are simply attached to the army and who are not 
combatants shall not be considered to be prisoners of war. Accordingly, they 
shall be returned as soon as they have been claimed and have been sufficiently 
identified, it being understood that such disposition shall be subject to 
reciprocity between the belligerents. 

6. The commanding generals of the armies of the Republic are authorized 
to treat, in accordance with these principles, with the commanding generals 
of the enemy armies. 

8. Prisoners of war who have not been included in an exchange cartel 
because they exceed the number of prisoners of war held by the enemy may 
be returned on their parole not to perform any service until they have been 
exchanged; they shall, therefore, be the first to be included in the next cartel; 
and two lists of their names shall be prepared, one for the enemy commanding 



15 

general and the other for the French commanding general, in order that both 
sides will be in a position to ensure the execution of these provisions. 

14. No enemy prisoner of war shall be taken into the armies of the Republic 
and its commanding generals shall require reciprocal action by the enemy 
commanding generals. 

15. The Republic shall pay, as subsistence, to the enemy officers, 
noncommissioned officers, and soldiers made prisoners of war, the amount of 
pay and allowances in effect in time of peace, at the grades corresponding to 
theirs in the French army; and when they receive their bread ration, it shall 
be on the same basis as for troops of the Republic. 

19. The commanding generals shall also take care to advise the Minister of 
War of the exact status of the French who are prisoners of war, and they shall 
take the necessary action to be informed, not only of the number of such 
prisoners of war, but also of their situation, of the manner in which they are 
provided with subsistence, and of the treatment which they receive in the 
foreign country, in order to be in a position to send them assistance and 
protection through the enemy commander, and to ensure that proper action is 
taken on their complaints when they are well-founded. 

20. The intention of the Republic being that the French officers and 
soldiers who, by the fortunes of war, have fallen into the power of the enemy, 
shall enjoy, until the time of their exchange, the pay and allowances of their 
grades, the army commanders shall make this intention known to the enemy 
commanders, as well as the table of peacetime pay and allowances, adjusted 
for the different grades, in order that the French prisoners of war may be 
treated by the enemy as the enemy prisoners of war are treated by the 
Republic. 

22. The French prisoners of war who, by virtue of article 8 of the present 
decree, are sent back on parole, shall receive their peacetime pay and 
allowances until the time when, having been returned to the service of the 
Republic through the medium of exchange, they are able to rejoin their units. 

23. The enemy prisoners of war who are sick or wounded shall be treated in 
the military hospitals of the Republic, either as ambulatory or as bed 
patients, with the same care as French soldiers receive, and their pay and 
allowances shall be subject to the same deductions as are made under similar 
circumstances for officers and soldiers of the Republic; it being understood 
that this treatment, dictated by justice and humanity, shall be reciprocated 
by the enemy toward French prisoners of war. 



16 
DOCUMENT NO. 12 

TREATY OF PEACE AND AMITY BETWEEN THE UNITED STATES 

OF AMERICA AND THE BASHAW, BEY, AND SUBJECTS OF 

TRIPOLI, IN BARBARY (4 June 1805) 

SOURCES 

8 Stat. 214 
llBevansl081 
58 Parry 143 

2 Malloy 1788 

2 Miller 529 

NOTE 

This is the treaty which ended the war (1801-1805) between the United 
States and Tripoli, one of the "Barbary Coast pirate states." The 300 
Americans referred to as being "in the possession" of the Bashaw (Pasha) of 
Tripoli were the officers and crew of the U.S.S. Philadelphia, captured when 
that ship went aground in Tripoli Harbor on 31 October 1803. Although the 
Barbary Coast states were not noted as having a particularly humanitarian 
attitude toward prisoners of war, most of the captured men had survived 
their 19 months of imprisonment. 

EXTRACTS 

ART. II. The bashaw of Tripoli shall deliver up to the American squadron, 
now off Tripoli, all the Americans in his possession; and all the subjects of the 
bashaw of Tripoli, now in the power of the United States of America, shall be 
delivered up to him; and as the number of Americans in possession of the 
bashaw of Tripoli, amounts to three hundred persons, more or less, and the 
number of Tripoline subjects in the power of the Americans, is about one 
hundred, more or less, the bashaw of Tripoli shall receive from the United 
States of America, the sum of sixty thousand dollars, as a payment for the 
difference between the prisoners herein mentioned. 

ART. 16th. If in the fluctuation of human events, a war should break out 
between the two nations, the prisoners captured by either party shall not be 
made slaves, but shall be exchanged rank for rank. And if there should be a 
deficiency on either side, it shall be made up by the payment of five hundred 
Spanish dollars for each captain, three hundred dollars for each mate and 
supercargo, and one hundred Spanish dollars for each seaman so wanting. 
And it is agreed that prisoners shall be exchanged in twelve months from the 
time of their capture; and that the exchange may be effected by any private 
individual legally authorized by either of the parties. 



17 
DOCUMENT NO. 13 

IMPERIAL DECREE OF 4 AUGUST 1811 CONCERNING PRISONERS 
OF WAR AND HOSTAGES (FRANCE ) 

SOURCES 
Bulletin des lois, decret n° 7130, annee 1811, 

fascicule 382, p. 95 
Bulletin Official du Ministre de la Guerre N° 110-0. 

Le droit des gens et les conventions inter- 

nationales 263 (1955) 

NOTE 

Although Napoleon has been charged with the responsibility for the 
disappearance of the system of parole (and exchange) of prisoners of war, as 
well as a number of other retrogressive steps in the law of war, this decree 
indicates that he was giving it at least lip service as late as 1811. 



TEXT 

Article 1. Prisoners of war having the rank of officers, as well as hostages, 
shall have the right to repair, without restraint and without escort, to the 
place to which they have been assigned and to reside there without being 
confined, after, however, they have given their parole not to deviate from the 
route that has been designated for them nor to leave their place of residence. 

Article 2. Any prisoner of war having the rank of officer, and any hostage, 
who, after having given his parole, violates it, shall, if he is recaptured, be 
considered and treated as a common soldier on the pay and rations reports 
and shall be confined in a citadel, fort, or castle. 

Article 3. Prisoners of war having the rank of officer, and hostages, who do 
not enjoy the privilege accorded by Article 1 hereof shall be detained in 
depots and shall not travel except with a military guard. If they escape while 
en route, or from the depot, and they are recaptured, they shall be confined in 
a citadel, fort, or castle. 

Article 4- Prisoners of war other than officers who escape either while en 
route to or from a depot, from a battalion, or from the private home in which 
they have been billeted, shall, in the event of their recapture, be confined in a 
citadel, fort, or castle. 



18 

DOCUMENT NO. 14 

CARTEL FOR THE EXCHANGE OF PRISONERS OF WAR BE- 
TWEEN GREAT BRITAIN AND THE UNITED STATES OF AMERICA 

(12 May 1813) 

SOURCES 
2 Miller 557 
1 BFSP 1410 
62 Parry 243 

NOTE 
This 1813 Cartel was negotiated to replace a prior (28 November 1812) 
provisional agreement of much more limited scope (it had dealt with naval 
prisoners only) which had been disapproved by President Madison. The 
Cartel was signed in Washington on 12 May 1813 and it provided that, if 
approved by the Secretary of State of the United States, it was to be 
"provisionally executed" until it was known whether the British authorities 
(mistakenly stated to be the Lords Commissioners of the Admiralty) 
'approved. Secretary of State Monroe approved the Cartel on 14 May 1813 and 
its implementation was begun. Subsequently, the British Government found 
a number of technical objections present in the Cartel and submitted a new 
proposal. While there is no record of the approval of that proposal by the 
United States, and the Cartel here presented was never ratified by Great 
Britain, it appears probable that it was at least considered to provide a modus 
operandi during the balance of the War of 1812 (1812-1815) between the two 
countries. (The often unique orthography appears in the original) 

EXTRACTS 
The Provisional agreement for the exchange of naval prisoners of war, 
made and concluded at Halifax in the province of Nova Scotia on the 28th day 
of November 1812 between the Honourable Richard John Uniacke His 
Britannic Majestys attorney and advocate General for the province of Nova 
Scotia and William Miller Esquire Lieutenant in the Royal navy and agent for 
Prisoners of War at Halifax; and John Mitchell Esquire late counsel of the 
united states at St. Jago de Cuba, american agent for Prisoners of war at 
Halifax, having been transmitted to the Department of state of the United 
States for approval and John Mason Esquire Commissary General for 
Prisoners for the United States having been duely authorized to meet 
Thomas Barclay Esquire his Britanic Majestys agent for Prisoners of war and 
for carrying on an exchange of Prisoners for the purpose of considering and 
revising the said provisional agreement and the articles of the said agreement 
having been by them considered and discussed — it has been agreed by the 
said Thomas Barclay and John Mason subject to the ratification of both their 
governments that the said provisional agreement shall be so altered and 
revised as to stand expressed in the following words: 



19 

ARTICLE FIRST — The Prisoners taken at sea or on land on both sides shall 
be treated with humanity conformable to the usage and practise of the most 
civilized nations during war; and such prisoners shall without delay, and as 
speedily as circumstances will admit, be exchanged on the following terms 
and conditions. That is to say — An admiral or a General commanding in chief 
shall be exchanged for officers of equal rank or for sixty men each; a vice 
admiral or a Lieutenant General for officers of equal rank or for forty men 
each, a Rear Admiral or a Major General, for officers of equal rank, or for 
thirty men each; a Commodore with a broad pendant and a Captain under him 
or a Brigadier General for officers of equal rank or for twenty men each; a 
Captain of a line of Battle ship or a Colonel for officers of equal rank or for 
fifteen men each; a Captain of a frigate, or Lieutenant Colonel for officers of 
equal rank or for ten men each; Commanders of sloops of war, Bomb Catches, 
fire ships, and Packets or a Major for officers of equal rank, or for eight men 
each; Lieutenants or masters in the navy, or Captains in the army, for officers 
of equal rank, or for six men each; Masters-Mates, or Lieutenants in the army 
for officers of equal rank, or for four men each; Midshipmen, warrant officers, 
Masters of merchant vessels, and Captains of private armed vessels, or sub 
Lieutenants and Ensigns for officers of equal rank, or for three men each: 
Lieutenants and mates of private armed vessels Mates of merchant vessels 
and all petty officers of ships of war, or all non commissioned officers of the 
army, for officers of equal rank, or for two men each — seamen and private 
soldiers one for the other. 

SECOND — All non combatants that is to say, surgeons and surgeons mates, 
Pursers, secretaries Chaplains and Schoolmasters, belonging to the army or 
men of war; surgeons and surgeons mates of merchant vessels, or Privateers; 
passengers, and all other men who are not engaged in the naval or Military 
service of the enemy, not being sea faring persons; all women and girls, and 
all Boys under twelve years of age; every person of the foregoing description, 
or of whatever description exempt from capture by the usage and practise of 
the most civilized nations when at war — if taken shall be immediately 
released without exchange and shall take their departure at their own 
charge, agreeably to passports to be granted them, or otherwise shall be put 
on board the next cartel which sails; persons found on board recaptured ships, 
whatever situation they may have held in the Capturing ship, shall not be 
considered as non combatants — non combatants are not to be imprisoned 
except for improper conduct, and if poor or unprovided with means to support 
themselves, the government of each nation will allow them a reasonable 
subsistence, having respect to their rank and situation in life. 

Third — American prisoners taken and brought within any of the 
dominions of his Brittanick majesty shall be stationed for exchange at Halifax 
in Nova Scotia — Quebec, Bridgetown in Barbadoes, Kingstowm in Jamaica 
— Falmouth and Liverpool in England and at no other posts or places — and 
British prisoners taken and brought into the United States shall be stationed 
at Salem in Massachusetts — Schnecteday in the state of New York — 
Providence in Rhode Island — Wilmington in Dele ware, Annapolis in 



20 

Maryland — Savannah in Georgia — New Orleans in Louisiana and at no 
other ports or places in the United States. — The Government of Great 
Brittain will receive and protect an agent to be appointed by the Government 
of the United States, to reside at or near each of the before mentioned places 
in the British Dominions for the purpose of inspecting the management and 
care which is taken of the american prisoners of war at each station: and the 
Government of the United States will in like manner receive and protect an 
agent, to be appointed by the British Government to reside at or near each of 
the stations before mentioned within the dominions of the United States for 
the like purpose of inspecting the mamagement and care taken of the British 
prisoners of war at each of the stations — and each Government shall be at 
liberty to appoint an agent to reside at or near any Depot established for 
prisoners by the other nation, for the purpose of taking care and inspecting 
the state and situation of such prisoners — and such agents shall be protected 
respectively in the same manner as the agents at the stations for exchange. 

FOURTH Whenever a Prisoner is admitted to parole the form of such parole 
shall be as follows — 



Whereas the agent appointed for the care and custody of prisoners of war at 

in has been pleased to grant leave to the 

undersigned Prisoner of war as described on the back hereof to 

reside in upon condition that give 

parole of honor not to withdraw from the bounds prescribed there 

without leave for that purpose from the said agent. That will 

behave decently and with due respect to the laws of this country and also that 
will not during continuance in 

either directly or indirectly carry on a correspondence with any of the enemies of 
or receive or write any letter or letters whatever, but through the hands of said agent, in order 
that they may be read and approved by him do hereby 

declare have given parole of 

honor accordingly, and that will keep it inviolably, dated at 



Men of War Priva- 
Signature. Quality Ships or Corps teerorMercht 

in which taken 



And the agent who shall take such parole shall grant a certificate to each 
prisoner so paroled, certifying the limits to which his parole extends, the 
hours and other rules, to be observed, and granting permission to such person 
to remain unmolested within such limits and every commissioned officer in 
the navy or army, when so paroled, if in health shall be paid by the agent that 
has granted such parole to him during the continuance thereof the sum of 
three shillings sterling per day each, for subsistence; and all other prisoners 
so paroled shall be paid each person at the rate of one shilling and six pence 
per day sterling, at the rate of four shillings and six pence sterling per 



21 

American milled dollar; which pay in case of actual sickness shall be doubled 
to each so long as the surgeon shall certify the continuance of such sickness; 
and each sick prisoner shall also be allowed the attendance of a nurse, in case 
the surgeon shall certify the person to be so ill as to require such help; all 
which subsistence and pay is to be paid in advance twice in every week; and 
prisoners who shall wilfully disobey the rules and regulations established for 
Prisoners on parole, may be sent to Prison. And all rules and regulations to be 
observed by prisoners on parole, are to be published and made known to each 
prisoner — and when any prisoner shall be allowed to depart at his own 
expense if he has not a sufficiency of money for that purpose he shall be 
allowed necessary money not to exceed the parole subsistence, to which he 
would have been entitled for one month, if he had remained. 

Fifth — And in case any prisoner be permitted to return to his own 
country on parole, on condition of not serving until duly exchanged such 

prisoner shall sign an engagement in the following form — 

Whereas Agent for the care and custody of Prisoners of War 

at has granted me the undersigned prisoner, described on the 

back hereof, permission to return to upon condition that I give 

my parole of honor that I will not enter into any naval military or other service whatever against 
the or any of the dominions thereunto belonging; or against 

any powers at peace with untill I shall have been regularly exchanged, 

and that I will surrender myself, if required by the agent of the government at such place and at 
such time as may be appointed, in case my exchange, shall not be affected; and I will untill 
exchanged, give notice from time to time of my place of residence. Now in consideration of my 
enlargement I do hereby declare, that I have given my parole of honour accordingly and that I 
will keep it inviolably — given under my hand at 

this day in the year of our Lord, 

and to the Prisoner so granted his enlargement on parole, shall be given a 
certificate and passport specifying the terms and conditions of his en- 
largement, and a description of his person, & notice of such parole agreement 
shall be sent to the agent for prisoners of war at the nearest station to the 
place where such parole shall be granted. 

Sixth — In case any prisoner of war shall become unmindfull of the 
honourable obligation he lies under, to the nation which shall have granted 
him his parole, and shall violate the same, he shall be liable to be dealt with 
according to the usages and customs observed in such cases, by the most 
civilized nations, when at war; and either nation shall have a right to demand 
from the other, the surrender and restoration of any prisoner of war who shall 
violate his parole, and every just & reasonable satisfaction shall be given to 
the nation damanding the same, to shew that if such prisoner be not returned, 
it is by reason of its not being in the power of the nation to which he originally 
belonged. 

Seventh — No prisoner shall be struck with the hand, whip, stick, or any 
other weapon whatever, the complaints of the prisoners shall be attended to, 
and real grievances redressed; and if they behave disorderly, they may be 
closely confined, and Kept on two thirds allowance for a reasonable time not 
exceeding ten days. They are to be furnished by the government in whose 
possession they maybe, with a subsistence of sound and wholesome pro- 



22 

visions, consisting of, one pound of Beef, or twelve ounces of pork; one pound 
of wheaten bread, and a quarter of a pint of pease, or six ounces of rice, or a 
pound of potatoes, per day to each man; and of salt and vinegar in the 
proportion of two quarts of salt and four quarts of vinegar to every hundred 
days subsistence. Or the ration shall consist of such other meats and 
vegetables (not changeing the proportion of meat to the vegetables, and the 
quantity of bread salt and vinegar always remaining the same) as may from 
time to time be agreed on, at the several stations, by the respective agents of 
the two governments, as of equal nutriment with the ration first described — 
Both Governments shall be at liberty, by means of their respective agents to 
supply their prisoners with clothing, and such other small allowances, as may 
be deemed reasonable, and to inspect at all times the quality and quantity of 
subsistence provided for the prisoners of their nations respectively, as 
stipulated in this article. 

Eighth — Every facility shall be given, as far as circumstances will 
permit, to the exchange of prisoners; and they shall be selected for exchange 
according to the scale hereby established on both sides, by the respective 
agents of the country to which they belong, without any interference 
whatever of the government in whose possession they may be — and if any 
prisoner is kept back, when his exchange shall be applied for, good and 
sufficient cause shall be assigned for such detention. 

Thirteenth — Lists shall be exchanged by the agents on both sides, of 
the prisoners hitherto delivered and after such lists are adjusted and signed 
agreeably to the rule of exchange hereby established, the persons named 
therein shall be considered as liberated and free to serve again, as well as 
those heretofore exchanged, notwithstanding any parole or engagement they 
may have previously entered into; and in future prisoners embarked in a 
cartel — belonging to the nation sending such prisoners, shall not be credited 
to the nation so sending them until they are delivered at one of the stations of 
the nation to which such prisoners belong, and a receipt is obtained from the 
proper agent of such delivery — But where the Prisoners and Cartel both 
belong to the same nation the delivery shall take place and receipts be given 
at the port of embarkation; provided that the delivery shall not be considered 
compleat, untill the cartel is in the act of departing the port, and the nation 
delivering the prisoners, shall retain the custody of them by mantaining a 
sufficient guard on board the Cartel untill she is actually under way — when 
the receipt shall be duely executed and delivered, and when special ex- 
changes are negotiated in discharge of special paroles, a certificate of such 
exchange must be forwarded to the station where the parole was granted. 

Fourteenth — If either nation shall at any time have delivered more 
prisoners than it has received, it is optional with such nation to stop sending 
any more prisoners on credit, untill a return shall be made equal in number to 
the balance so in advance. 



23 
DOCUMENT NO. 15 

TREATY OF PEACE AND AMITY BETWEEN HIS BRITANNIC 
MAJESTY AND THE UNITED STATES OF AMERICA (Ghent, 24 

December 1814) 

SOURCES 

8 Stat. 218 
12 Bevans 41 

2 BFSP 357 
63 Parry 422 

1 Malloy 12 

2 Miller 574 

NOTE 

This is the treaty of peace which brought to an end the so-called War of 1812 
(1812-1815) between Great Britain and the United States. (Because of the 
nature of the communications of that era, the Battle of New Orleans was 
fought on 8 January 1815; and the U.S.S. Constitution fought two British 
warships on 20 January 1815 and was chased by three British warships on 11 
March 1815. The treaty had been signed on 24 December 1814 and while 
Great Britain had ratified it on 31 December 1814, the first news of its signing 
did not arrive in the United States until 11 February 1815, and it was not 
ratified by the latter until 17 February 1815. By its terms hostilities were to 
cease only upon the exchange of ratifications.) Of particular interest is the 
provision requiring prisoners of war to discharge all local debts prior to 
repatriation. 

EXTRACT 
ARTICLE THE THIRD. 

All prisoners of war taken on either side, as well by land as by sea, shall be 
restored as soon as practicable after the ratifications of this treaty, as herein- 
after mentioned, on their paying the debts which they may have contracted 
during their captivity. The two contracting parties respectively engage to 
discharge, in specie, the advances which may have been made by the other for 
the sustenance and maintenance of such prisoners. 



24 

DOCUMENT NO. 16 

TREATY OF PEACE AND AMITY CONCLUDED BETWEEN THE 

UNITED STATES OF AMERICA AND HIS HIGHNESS OMAR 

BASHAW, DEY OF ALGIERS (30 June 1815) 

SOURCES 
6 Stat. 224 
5 Bevans 45 
3 BFSP 45 
65 Parry 33 

1 Malloy 6 

2 Miller 585 



NOTE 

Algiers, another of the "Barbary Coast pirate states," (see DOCUMENT 
NO. 12) had instituted hostilities against the United States in 1812. Probably 
because of its preoccupation with and involvement in the so-called War of 
1812 (1812-1815) with Great Britain, no major action was taken by the United 
States against Algiers until the more important conflict had been concluded. 
A few weeks after the exchange of ratifications of the Treaty of Ghent 
(DOCUMENT NO. 15) ending that war, Congress authorized naval opera- 
tions against Algiers. These operations were completely successful and this 
Treaty of Peace was prepared aboard an American warship off the coast of 
Algiers and was signed by the Dey on 30 June 1815. (According to one 
authority, a draft of the proposed treaty was prepared aboard ship and was 
sent ashore by small boat for review by the Dey. It returned three hours later 
with the draft signed and with the prisoners of war mentioned therein.) The 
difference between the provisions of this treaty and those of the 1805 Treaty 
between the United States and Tripoli (DOCUMENT NO. 12) with respect to 
the excess number of prisoners of war held by one side is worthy of note. (For 
technical reasons it became necessary for the Parties to enter into a new 
treaty, which they did on 22 December 1816 (8 Stat. 244; 5 Bevans 51; BFSP 
841; 66 Parry 453; 2 Miller 617). Article 3 below had, of course, already been 
executed; and Article 17 was reproduced in identical form. For comparison 
purposes, and as a curiosity, a literal English translation of the Turkish 
version of Article 17 is given below. It appears in Miller.) 

EXTRACTS 
Art. 3. The Dey of Algiers shall cause to be immediately delivered up to 
the American squadron now off Algiers, all the American citizens now in his 
possession, amounting to ten, more or less; and all the subjects of the Dey of 
Algiers, now in possession of the United States, amounting to five hundred, 
more or less, shall be delivered up to him; the United States, according to the 



25 

usages of civilized nations, requiring no ransom for the excess of prisoners in 
their favor. 

Art. 17. If, in the course of events, a war should break out between the two 
nations, the prisoners captured by either party shall not be made slaves; they 
shall not be forced to hard labor, or other confinement than such as may be 
necessary to secure their safe keeping, and shall be exchanged rank for rank; 
and it is agreed that prisoners shall be exchanged in twelve months after their 
capture; and the exchange may be effected by any private individual legally 
authorized by either of the parties. 

[English translation of the Turkish version: 

Article 17. 

If, in case of war with the Americans, they are taken prisoners, the guards 
may not treat them with heavy blows and keep them as slaves. If Algerian 
prisoners should arrive in their country, they shall be exchanged; a delay of a 
year shall be given.] 



26 

DOCUMENT NO. 17 

CONVENTION BETWEEN COLOMBIA AND SPAIN FOR THE 
REGULARIZATION OF THE WAR (Trujillo, 26 November 1820) 

SOURCE 
71 Parry 292 

NOTE 
On 25 November 1820 representatives of Simon Bolivar, Liberator and 
President of Colombia, and of General Pedro Morillo, who had earlier been 
the Spanish "Pacificator," signed a temporary armistice in the civil war in 
which they were then engaged. At Bolivar's suggestion that armistice 
contained a provision committing the parties to conclude a treaty regulating 
the conduct of the war. The Convention for the Regularization of the War, 
signed at Trujillo on the following day, resulted from that commitment. 
Bolivar and Morillo demonstrated a humanitarian concern quite atypical of 
their era and of Morillo himself. (He had been widely known for his terroristic 
excesses.) 

EXTRACTS 

Art. II. Any member of the armed forces and any individual attached to an 
army unit, captured on the field of battle, even before the date of the present 
convention, shall be regarded as a prisoner of war and shall be treated as such 
in accordance with his rank until he is exchanged. 

Art. III. There shall also be considered as prisoners of war those who fall 
into the power of the enemy during a march, a reconnaissance, or an 
excursion from the places, garrisons, and fortified posts, even when they are 
taken by assault, and at sea, when taken by boarding. 

Art. IV. The members of the armed forces and the individuals attached to 
an army unit, who have been captured while wounded or while sick in a 
hospital or elsewhere, shall not be considered to be prisoners of war, and they 
shall be free to return to their side as soon as they are able to do so. As 
humanity speaks strongly in favor of these unfortunates, who have sacrificed 
themselves for their country and their government, they shall be treated as 
prisoners of war, but with even more consideration, and they shall be fur- 
nished the same help and the same care that is given to the wounded and sick 
of the party which has made them prisoners of war. 

Art. V. Prisoners of war shall be exchanged, class for class, and grade for 
grade, and there shall be exchanged for a member of the armed forces of 
superior grade the number of individuals of a lesser grade which is fixed by 
the custom of civilized nations. 

Art. VI. There shall also be included in the exchange, and treated as 
prisoners of war, the members of the armed forces and the peasants who, be it 
separately or as a body, serve the commander of the armed force by making 
reconnaissances or by reconnoitering the enemy army. 



27 

Art. VII. The present war having arisen out of a difference of opinion, and 
the persons who have fought with the most passion for the two causes having 
between them close ties of consanguinity or others, and it being desired to 
avoid bloodshed to the maximum extent possible, it is agreed that members of 
the armed forces and representatives who, after having served one of the two 
governments, have abandoned it and have been captured while serving the 
other, shall not be punished by death. The same shall be true as to 
conspirators and malcontents on both sides. 

Art. VIII. The exchange of prisoners [of war] shall be obligatory and shall 
be accomplished within the shortest time possible. Prisoners [of war] shall be 
retained on the territory of Columbia, whatever their grade or rank, and they 
shall not, for any reason or under any pretext, be taken out of the country and 
exposed to sufferings worse than death. 

Art. IX. The military commanders shall take care that prisoners [of war] 
are maintained in the manner desired by the government to which they 
belong, considering that there shall be reciprocal reimbursement of the 
expenses incurred in this regard. The commanders shall have the right to 
appoint commissioners who shall repair to the prisoner-of-war depots, 
examine their state, and take care that the condition of the prisoners of war is 
improved and that their lot is rendered easier. 

Art. X. Members of the armed forces who are presently prisoners [of war] 
shall enjoy the benefits of this treaty. 

Art. XIII. The generals of armies, the commanders of divisions, and all 
other authorities shall be bound to the faithful and strict observance of the 
present treaty; and violations shall be punished in a rigorous manner and the 
two governments promise, under the guaranty of the loyalty and honor of 
their nations, to accomplish this with scrupulous exactitude. 



28 

DOCUMENT NO. 18 

TREATY OF ADRIANOPLE, BEING A TREATY OF PEACE BE- 
TWEEN THE EMPEROR OF RUSSIA AND THE EMPEROR OF THE 

OTTOMANS 
(14 September 1829) 

SOURCES 
2 Hertslet 813 
16 BFSP 647 
80 Parry 83 

NOTE 

This treaty, signed at Adrianople (now Edirne) on 14 September 1829, 
brought to an end another of the numerous wars between Russia and Turkey. 
Like other peace treaties of the Parties of this era (see DOCUMENT NO. 6), 
it contained a provision excepting from the requirement of liberation and 
return those prisoners of war who had, while in that category, elected to 
change their religion. 

EXTRACTS 

Art. XIV. All the Prisoners of War, of whatsoever nation, condition, and 
sex they may be, who are in the two Empires, must, immediately after the 
exchange of the Ratifications of the present Treaty of Peace, be delivered up 
and restored without the least ransom or payment. Exception is made in 
favour of the Christians who, of their own free will, have embraced the 
Mahometan religion, in the States of the Sublime Porte, and of the 
Mahometans, who in like manner, of their own free will, have embraced the 
Christian religion in the States of the Empire of Russia. 

The same shall be observed with respect to the Russian subjects, who, 
after the signing of the present Treaty of Peace, may have, in any manner, 
fallen into captivity, and who are in the States of the Sublime Porte. The 
Imperial Court of Russia promises, on its part, to act in the same manner 
towards the subjects of the Sublime Porte. 

No reimbursement of the sums which have been expended by the High 
Contracting Powers for the maintenance of the Prisoners of War, shall be 
required. Each of them shall provide all that is necessary for them during 
their journey to the frontier, where they will be exchanged by Com- 
missioners appointed respectively. 



29 
DOCUMENT NO. 19 

OPINION OF THE [BRITISH] KINGS ADVOCATE CONCERNING 

THE IMPROPER TREATMENT OF PRISONERS OF WAR 

(London, 24 September 1832) 

SOURCE 
3 McNair, International Law Opinions 119 

NOTE 
For many years the King's Advocate, located at Doctors' Commons, was 
the adviser to the British Government on matters of international law. The 
opinion here presented was requested at a time when the usurper monarch of 
Portugal, Dom Miguel, was besieging Porto (Oporto) which was held by the 
forces of the constitutional king, Pedro I, who had the support of the British. 
The latter feared that the city would fall to the besiegers and that Dom Miguel 
would massacre the members of the constitutional forces who fell into his 
hands. (Actually, Porto did not fall and Dom Pedro succeeded in gaining his 
throne.) The British Government sought advice as to its right to intervene in 
an internal conflict in order to ensure the protection of the prospective 
prisoners of war. 

TEXT 

doctor's commons 
My Lord, October 24th, 1832 

I am honoured with Your Lordship's Commands signified in Mr. 
Backhouse's letter of the 13th instant transmitting to me, confidentially, a 
letter from Col. Evans, relative to the conduct which it is feared may be 
adopted, towards the Defenders of Oporto, in the event of the City being 
captured by the troops of Don Miguel, and Your Lordship is pleased to 
request that I would communicate any remarks that may occur to me upon 
the contents of this letter, and that I would state my opinion with regard to 
the right of the British Government to intervene at all in this matter. 

In obedience to Your Lordship's commands I have the honour to report 
that cases may possibly occur in which treatment of Prisoners of War by a 
nation may be so barbarous and inhuman as to call upon other powers to make 
common cause against it, and to take such measures as may be necessary to 
compel it to abandon such practice, and to conform itself to the more lenient 
exercise of the rights of war, adopted by other States, and such I conceive to 
have been the principle acted upon in the cases of Turks and Algerines 
referred to by Col. Evans. But I apprehend that such interference can only be 
justified by the notorious existence of the fact, as in the instances just 
mentioned, and I am humbly of opinion that apprehension of what may 
possibly occur, in the event of the capture of Oporto, founded upon reports 
and rumours, which are the only grounds upon which the present application 
appears to rest, will not be a sufficient reason for His Majesty's Government 



30 

to interfere, by causing 'an Intimation to be given to Don Miguel, that 
England will not permit the ordinary Laws of war to be departed from', as 
suggested by Col. Evans or in any other manner. 

I have the honour to be etc. 
Viscount Palmerston Herbert Jenner 



31 

DOCUMENT NO. 20 

RECOMMENDATIONS AND PROCLAMATION OF GENERAL 
GUILLAUME H. DUFOUR DURING THE SWISS CIVIL WAR OF 1847, 
THE WAR OF THE SONDERBUND 
(Berne, 4 and 5 November 1847) 

SOURCE 

DuFour, Campagne du Sonderbund 183 (1876) 

NOTE 
A festering dispute between the so-called "liberal" cantons of Switzerland 
and those which were strongly Catholic over the problem of freedom of 
religion culminated in the establishment by a number of Catholic cantons, in 
December 1845, of a separatist confederation, titled the Sonderbund. In July 
1847, after it was certain that 12 of the 22 cantons were controlled by the 
liberals, the Swiss Diet met and declared the Sonderbund unlawful and 
ordered it dissolved. The cantons composing the Sonderbund decided to 
oppose this action with force and a civil war resulted. General Guillaume H. 
Dufour was elected commander-in-chief of the army of the central 
government (the first of four times that he was so elected) and in that capacity 
he issued the recommendations to his division commanders (4 November 
1847) and the proclamation to his troops (5 November 1847) which appear 
below. Hostilities ended shortly thereafter with the complete defeat of the 
Sonderbund armed forces. Subsequently, General Dufour joined Henri 
Dunant in the work which resulted in the creation of the International 
Committee of the Red Cross and the trail-breaking 1864 Geneva Convention 
(DOCUMENT NO. 24). 

EXTRACTS 

Recommendations to the division commanders with respect to the conduct to 
adopt toward the inhabitants and soldiers of the Sonderbund (4 November 
1847): 
Disarm the prisoners of war, but do them no harm and do not insult them. 

On the contrary, treat them as well as possible so as to set them right. Allow 

them to return home if they promise, on their honor, to put aside their 

uniforms and not to take up arms again. 

Proclamation to the troops (5 November 1847): 

Soldiers! It is essential to come out of this struggle not only victorious, but 
also without shame. It must be possible to say of you: They fought valiantly 
when they had to do so, but they have shown themselves to be humane and 
generous. 

I place under your protection the children, the women, the elderly, and the 
priests. Anyone who strikes a noncombattant dishonors and soils our flag. 
The prisoners of war, and above all the wounded, deserve your respect and 
your compassion, all the more because you have often been in the same camps 
with them. 



32 

DOCUMENT NO. 21 

TREATY OF PEACE, FRIENDSHIP, LIMITS, AND SETTLEMENT 
BETWEEN THE UNITED STATES OF AMERICA AND THE UNITED 

MEXICAN STATES 

(Guadalupe Hidalgo, 2 February 1848) 

SOURCES 
9 Stat. 922 
9 Bevans 791 
37 BFSP 567 
102 Parry 29 

NOTE 

This was the treaty which ended the war between Mexico and the United 
States (1846-1848). The provisions concerning the treatment of prisoners of 
war in any future conflict between the two countries was obviously modeled 
after the comparable provisions of the earlier Treaties of Amity and 
Commerce betweem Prussia and the United States (see DOCUMENT NO. 
7). 

EXTRACTS 
ARTICLE IV 

All prisoners of war taken on either side, on land or on sea, shall be restored 
as soon as practicable after the exchange of ratifications of this treaty. It is 
also agreed that if any Mexicans should now be held as captives by any savage 
tribe within the limits of the United States, as about to be established by the 
following article, the government of the said United States will exact the 
release of such captives, and cause them to be restored to their country. 

Article XXII. 

If (which is not to be expected, and which God forbid!) war should 
unhappily break out between the two republics, they do now, with a view to 
such calamity, solemnly pledge themselves to each other and to the world, to 
observe the following rules; absolutely where the nature of the subject 
permits, and as closely as possible in all cases where such absolute observance 
shall be impossible: — 

2. In order that the fate of prisoners of war may be alleviated, all such 
practices as those of sending them into distant inclement or unwholesome 
districts, or crowding them into close and noxious places, shall be studiously 
avoided. They shall not be confined in dungeons, prison-ships, or prisons; nor 
be put in irons, or bound, or otherwise restrained in the use of their limbs. 
The officers shall enjoy liberty on their paroles, within convenient districts, 
and have comfortable quarters; and the common soldier shall be disposed in 
cantonments, open and extensive enough for air and exercise, and lodged in 
barracks as roomy and good as are provided by the party in w T hose pow r er they 
are for its ow r n troops. But if any officer shall break his parole by leaving the 



33 

district so assigned him, or any other prisoner shall escape from the limits of 
his cantonment, after they shall have been designated to him, such individual, 
officer, or other prisoner, shall forfeit so much of the benefit of this article as 
provides for his liberty on parole or in cantonment. And if any officer so 
breaking his parole, or any common soldier so escaping from the limits 
assigned him, shall afterwards be found in arms, previously to his being 
regularly exchanged, the person so offending shall be dealt with according to 
the established laws of war. The officers shall be daily furnished by the party 
in whose power they are, with as many rations, and of the same articles, as 
are allowed, either in kind or by commutation, to officers of equal rank in its 
own army; and all others shall be daily furnished with such ration as is allowed 
to a common soldier in its own service; the value of all which supplies shall, at 
the close of the war, or at periods to be agreed upon between the respective 
commanders, be paid by the other party, on a mutual adjustment of accounts 
for the subsistence of prisoners; and such accounts shall not be mingled with 
or set off against any others, nor the balance due on them be withheld, as a 
compensation or reprisal for any cause whatever, real or pretended. Each 
party shall be allowed to keep a commissary of prisoners, appointed by itself, 
with every cantonment of prisoners, in possession of the other; which 
commissary shall see the prisoners as often as he pleases; shall be allowed to 
receive, exempt from all duties or taxes, and to distribute, whatever 
comforts may be sent to them by their friends; and shall be free to transmit his 
reports in open letters to the party by whom he is employed. 

And it is declared that neither the pretence that war dissolves all treaties, 
nor any other whatever, shall be considered as annulling or suspending the 
solemn covenant contained in this article. On the contrary, the state of war is 
precisely that for which it is provided; and during which, its stipulations are 
to be as sacredly observed as the most acknowledged obligations under the 
law of nature or nations. 



34 

DOCUMENT NO. 22 

THE "DIX-HILL CARTEL" FOR THE GENERAL EXCHANGE OF 
PRISONERS OF WAR ENTERED INTO BETWEEN THE UNION AND 

CONFEDERATE ARMIES 
(22 July 1862) 

SOURCE 
War of the Rebellion: A Compilation of the Official 
Records of the Union and Confederate Armies. 
Series II, Volume IV, at 266 

NOTE 
Because of this Cartel for a general exchange of prisoners of war, entered 
into by the two sides comparatively early in the American Civil War (1861- 
1865), it was assumed that prisoners of war would be held for only very short 
periods of time before being released on parole, thereafter to be admin- 
istratively exchanged. Accordingly, no agreement was ever negotiated with 
respect to the treatment which prisoners of war were to receive while being 
held as such. Inasmuch as the Cartel was not fully complied with by either 
side (during the early part of the war the Union would have profited by full 
compliance and during the latter part of the war the Confederacy would have 
so profited), the poor treatment which prisoners of war received from both 
sides was the cause of bitter recriminations — and several post-war trials. 
(See DOCUMENT NO. 25.) 

TEXT 
Haxall's Landing, on James River, Va., 

July 22, 1862. 

The undersigned having been commissioned by the authorities they 
respectively represent to make arrangements for a general exchange of 
prisoners of war have agreed to the following articles: 

ARTICLE 1. It is hereby agreed and stipulated that all prisoners of war held 
by either party including those taken on private armed vessels known as 
privateers shall be discharged upon the conditions and terms following: 

Prisoners to be exchanged man for man and officer for officer; privateers to 
be placed upon the footing of officers and men of the Navy. 

Men and officers of lower grades may be exchanged for officers of a higher 
grade, and men and officers of different services may be exchanged according 
to the following scale of equivalents: 

A general commanding in chief or an admiral shall be exchanged for officers 
of equal rank, or for sixty privates or common seamen. 

A flag officer or major-general shall be exchanged for officers of equal rank, 
or for forty privates or common seamen. 

A commodore carrying a broad pennant or a brigadier-general shall be 
exchanged for officers of equal rank, or twenty privates or common seamen. 



35 

A captain in the Navy or a colonel shall be exchanged for officers of equal 
rank, of for fifteen privates or common seamen. 

A lieutenant-colonel or a commander in the Navy shall be exchanged for 
officers of equal rank, or for ten privates or common seamen. 

A lieutenant-commander or a major shall be exchanged for officers of equal 
rank, or eight privates or common seamen. 

A lieutenant or a master in the Navy or a captain in the Army or marines 
shall be exchanged for officers of equal rank, or six privates or common 
seamen. 

Masters' mates in the Navy or lieutenants and ensigns in the Army shall be 
exchanged for officers of equal rank, or four privates or common seamen. 

Midshipmen, warrant officers in the Navy, masters of merchant vessels 
and commanders of privateers shall be exchanged for officers of equal rank, or 
three privates or common seamen. 

Second captains, lieutenants or mates of merchant vessels or privateers 
and all petty officers in the Navy and all non-commissioned officers in the 
Army or marines shall be severally exchanged for persons of equal rank, or 
for two privates or common seamen, and private soldiers or common seamen 
shall be exchanged for each other, man for man. 

Art. 2. Local, State, civil and militia rank held by persons not in actual 
military service will not be recognized, the basis of exchange being the grade 
actually held in the naval and military service of the respective parties. 

Art. 3. If citizens held by either party on charges of disloyalty or any 
alleged civil offense are exchanged it shall only be for citizens. Captured 
sutlers, teamsters and all civilians in the actual service of either party to be 
exchanged for persons in similar position. 

Art. 4. All prisoners of war to be discharged on parole in ten days after 
their capture, and the prisoners now held and those hereafter taken to be 
transported to the points mutually agreed upon at the expense of the captur- 
ing party. The surplus prisoners not exchanged shall not be permitted to take 
up arms again, nor to serve as military police or constabulary force in any 
fort, garrison or field-work held by either of the respective parties, nor as 
guards of prisons, depots or stores, nor to discharge any duty usually per- 
formed by soldiers, until exchanged under the provisions of this cartel. The 
exchange is not to be considered complete until the officer or soldier ex- 
changed for has been actually restored to the lines to which he belongs. 

Art. 5. Each party upon the discharge of prisoners of the other party is 
authorized to discharge an equal number of their own officers or men from 
parole, furnishing at the same time to the other party a list of their prisoners 
discharged and of their own officers and men relieved from parole, thus 
enabling each party to relieve from parole such of their own officers and men 
as the party may choose. The lists thus mutually furnished will keep both 
parties advised of the true condition of the exchange of prisoners. 

Art. 6. The stipulations and provisions above mentioned to be of binding 
obligation during the continuance of the war, it matters not which party may 
have the surplus of prisoners, the great principles involved being, first, an 



36 

equitable exchange of prisoners, man for man, officer for officer, or officers of 
higher grade exchanged for officers of lower grade or for privates, according 
to the scale of equivalents; second, that privateers and officers and men of 
different services may be exchanged according to the same scale of 
equivalents; third, that all prisoners, of whatever arm of service, are to be 
exchanged or paroled in ten days from the time of their capture, if it be 
practicable to transfer them to their own lines in that time; if not, as soon 
thereafter as practicable; fourth, that no officer, soldier or employee, in the 
service of either party, is to be considered as exchanged and absolved from 
his parole until his equivalent has actually reached the lines of his friends; 
fifth, that the parole forbids the performance of field, garrison, police, or 
guard, or constabulary duty. 

JOHN A. DIX, 

Major-General, 
D. H. HILL, 
Major-General, C. S. Army. 

SUPPLEMENTARY ARTICLES. 

Art. 7. All prisoners of war now held on either side and all prisoners 
hereafter taken shall be sent with all reasonable dispatch to A. M. Aiken's, 
below Dutch Gap, on the James River, Va. , or to Vicksburg, on the Misissippi 
River, in the State of Mississippi, and there exchanged or paroled until such 
exchange can be effected, notice being previously given by each party of the 
number of prisoners it will send and the time when they will be delivered at 
those points respectively; and in case the vicissitudes of war shall change the 
military relations of the places designated in this article to the contending 
parties so as to render the same inconvenient for the delivery and exchange of 
prisoners, other places bearing as nearly as may be the present local relations 
of said places to the lines of said parties shall be by mutual agreement 
substituted. But nothing in this article contained shall prevent the com- 
manders of two opposing armies from exchanging prisoners or releasing them 
on parole from other points mutually agreed on by said commanders. 

Art. 8. For the purpose of carrying into effect the foregoing articles of 
agreement each party will appoint two agents, to be called agents for the 
exchange of prisoners of war, whose duty it shall be to communicate with each 
other by correspondence and otherwise, to prepare the lists of prisoners, to 
attend to the delivery of the prisoners at the places agreed on and to carry out 
promptly, effectually and in good faith all the details and provisions of the said 
articles of agreement. 

Art. 9. And in case any misunderstanding shall arise in regard to any 
clause or stipulation in the foregoing articles it is mutually agreed that such 
misunderstanding shall not interrupt the release of prisoners on parole, as 
herein provided, but shall be made the subject of friendly explanations in 
order that the object of this agreement may neither be defeated nor 
postponed. 

JOHN A. DIX, D.H.HILL, 

Major-General, Major-General, C. S. Army 



37 
DOCUMENT NO. 23 

INSTRUCTIONS FOR THE GOVERNMENT OF THE ARMIES OF 
THE UNITED STATES IN THE FIELD (THE "LIEBER CODE') 

(24 April 1863) 

SOURCES 
NWC, 1903, at 115 
Schindler & Toman 3 

NOTE 
These Instructions were prepared by Dr. Francis Lieber of Columbia 
University at the request of Maj. Gen. Henry W. Halleck, then Gen- 
eral-in-Chief of the Union armies. They were revised by a Board of Officers 
headed by Maj. Gen. E. A. Hitchcock and were approved by President 
Abraham Lincoln. They were then published by the United States War 
Department as General Orders No. 100, 24 April 1863, thereby establishing 
operational rules to govern the activities of the Union armies during the 
American Civil War (1861 — 1865). While it will readily be seen that compared 
to presently existing law Lieber would not be considered overly human- 
itarian in his rules concerning prisoners of war, he was actually well in 
advance of his times as was demonstrated by: (1) the failure of both sides in 
the Civil War to give prisoners of war even the minimal treatment prescribed 
in the Instructions; (2) the fact that the 1874 Declaration of Brussels 
(DOCUMENT NO. 27), which included many of Lieber's provisions with 
respect to prisoners of war, was not ratified by the Powers and never entered 
into force; and (3) the fact that it was not until the 1899 Hague II Regulations 
(DOCUMENT NO. 28) were drafted and ratified that an international code 
with somewhat comparable provisions entered into force. 

EXTRACTS 

48. 

Deserters from the American Army, having entered the service of the 
enemy, suffer death if they fall again into the hands of the United States, 
whether by capture, or being delivered up to the American Army; and if a 
deserter from the enemy having taken service in the Army of the United 
States, is captured by the enemy, and punished by them with death or 
otherwise, it is not a breach against the law and usages of war, requiring 
redress or retaliation. 

49. 

A prisoner of war is a public enemy armed or attached to the hostile army 
for active aid, who has fallen into the hands of the captor, either fighting or 
wounded, on the field or in the hospital, by individual surrender or by 
capitulation. 

All soldiers, of whatever species of arms; all men who belong to the rising 
en masse of the hostile country; all those who are attached to the army for its 



38 

efficiency and promote directly the object of the war, except such as are 
hereinafter provided for; all disabled men or officers on the field or elsewhere, 
if captured; all enemies who have thrown away their arms and ask for 
quarter, are prisoners of war, and as such exposed to the inconveniences as 
well as entitled to the privileges of a prisoners of war. 

50. 

Moreover, citizens who accompany an army for whatever purpose such as 
sutlers, editors, or reporters of journals, or contractors, if captured, may be 
made prisoners of war, and be detained as such. 

The monarch and members of the hostile reigning family, male or female, 
the chief, and chief officers of the hostile government, its diplomatic agents, 
and all persons who are of particular and singular use and benefit to the 
hostile army or its government, are, if captured on belligerent ground, and if 
unprovided with a safe conduct granted by the captor's government, 
prisoners of war. 

51. 

If the people of that portion of an invaded country which is not yet occupied 
by the enemy, or of the whole country, at the aproach of a hostile army, rise, 
under a duly authorized levy, en masse to resist the invader, they are now 
treated as public enemies, and, if captured, are prisoners of war. 

52. 

No belligerent has the right to declare that he will treat every captured 
man in arms of a levy en masse as a brigand or bandit. If however, the 
people of a country, or any portion of the same, already occupied by an army, 
rise against it, they are violators of the laws of war, and are not entitled to 
their protection. 

53. 

The enemy's chaplains, officers of the medical staff, apothecaries, hospital 
nurses and servants, if they fall into the hands of the American Army, are not 
prisoners of war, unless the commander has reasons to retain them. In this 
latter case, or if, at their own desire, they are allowed to remain with their 
captured companions, they are treated as prisoners of war, and may be 
exchanged if the commander sees fit. 

54. 

A hostage is a person accepted as a pledge for the fulfillment of an 
agreement concluded between belligerents during the war, or in consequence 
of a war. Hostages are rare in the present age. 

55. 

If a hostage is accepted, he is treated like a prisoner of war, according to 
rank and condition, as circumstances may admit. 

56. 

A prisoner of war is subject to no punishment for being a public enemy, nor 
is any revenge wreaked upon him by the intentional infliction of any suffering, 
or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any 
other barbarity. 



39 

57. 
So soon as a man is armed by a sovereign government and takes the 
soldier's oath of fidelity, he is a belligerent; his killing, wounding, or other 
warlike acts are not individual crimes or offenses. No belligerent has a right 
to declare that enemies of a certain class, color, or condition, when properly 
organized as soldiers, will not be treated by him as public enemies. 

58. 

The law of nations knows of no distinction of color, and if an enemy of the 

United States should enslave and sell any captured persons of their army, it 

would be a case for the severest retaliation, if not redressed upon complaint. 

The United States can not retaliate by enslavement; therefore death must 

be the retaliation for this crime against the law of nations. 

59. 
A prisoner of war remains answerable for his crimes committed against the 
captor's army or people, committed before he was captured, and for which he 
has not been punished by his own authorities. 

All prisoners of war are liable to the infliction of retaliatory measures. 

60. 
It is against the usage of modern war to resolve, in hatred and revenge, to 
give no quarter. No body of troops has the right to declare that it will not give, 
and therefore will not expect, quarter; but a commander is permitted to 
direct his troops to give no quarter, in great straits, when his own salvation 
makes it impossible cumber himself with prisoners. 

61 
Troops that give no quarter have no right to kill enemies already disabled 
on the ground, or prisoners captured by other troops. 

62. 
All troops of the enemy known or discovered to give no quarter in general, 
or to any portion of the army, receive none. 

63 
Troops who fight in the uniform of their enemies, without any plain, 
striking, and uniform mark of distinction of their own, can expect no quarter. 

64. 
If American troops capture a train containing uniforms of the enemy, and 
the commander considers it advisable to distribute them for use among his 
men, some striking mark or sign must be adopted to distinguish the American 
soldier from the enemy. 

65. 
The use of the enemy's national standard, flag, or other emblem of 
nationality, for the purpose of deceiving the enemy in battle, is an act of 
perfidy by which they lose all claim to the protection of the laws of war. 

66. 
Quarter having been given to an enemy by American troops, under a 
misapprehension of his true character, he may, nevertheless, be ordered to 
suffer death if, within three days after the battle, it be discovered that he 
belongs to a corps which gives no quarter. 



40 

67. 

The law of nations allows every sovereign government to make war upon 
another soverign state, and, therefore, admits of no rules or laws different 
from those of regular warfare, regarding the treatment of prisoners of war, 
although they may belong to the army of a government which the captor may 
consider as a wanton and unjust assailant. 

71. 

Whoever intentionally inflicts additional wounds on an enemy already 
wholly disabled, or kills such an enemy, or who orders or encourages soldiers 
to do so, shall suffer death, if duly convicted, whether he belongs to the Army 
of the United States, or is an enemy captured after having committed his 
misdeed. 

72. 

Money and other valuables on the person of a prisoner, such as watches or 
jewelry, as well as extra clothing, are regarded by the American Army as the 
private property of the prisoner, and the appropriation of such valuables or 
money is considered dishonorable, and is prohibited. 

Nevertheless, if large sums are found upon the persons of prisoners, or in 
their possession, they shall be taken from them, and the surplus, after 
providing for their own support, appropriated for the use of the army, under 
the direction of the commander, unless otherwise ordered by the gov- 
ernment. Nor can prisoners claim, as private property, large sums found and 
captured in their train, although they have been placed in the private luggage 
of the prisoners. 

73. 

All officers, when captured, must surrender their side arms to the captor. 
They may be restored to the prisoner in marked cases, by the commander, to 
signalize admiration of his distinguished bravery or approbation of his 
humane treatment of prisoners before his capture. The captured officer to 
whom they may be restored can not wear them during captivity. 

74. 

A prisoner of war, being a public enemy, is the prisoner of the government, 
and not of the captor. No ransom can be paid by a prisoner of war to his 
individual captor or to any oficer in command. The government alone releases 
captives, according to rules prescribed by itself. 

75. 

Prisoners of war are subject to confinement or imprisonment such as may 
be deemed necessary on account of safety, but they are to be subjected to no 
other intentional suffering or indignity. The confinement and mode of 
treating a prisoner may be varied during his captivity, according to the 
demands of safety. 

76. 

Prisoners of war shall be fed upon plain and wholesome food, whenever 
practicable, and treated with humanity. 

They may be required to work for the benefit of the captor's government, 
according to their rank and condition. 



41 

77. 

A prisoner of war who escapes may be shot or otherwise killed in his flight; 
but neither death nor any other punishment shall be inflicted upon him simply 
for his attempt to escape, which the law of war does not consider a crime. 
Stricter means of security shall be used after an unsuccessful attempt to 
escape. 

If, however, a conspiracy is discovered, the purpose of which is a united or 
general escape, the conspirators may be rigorously punished, even with 
death; and capital punishment may also be inflicted upon prisoners of war 
discovered to have plotted rebellion against the authorities of the captors, 
whether in union with fellow prisoners or other persons. 

78. 

If prisoners of war, having given no pledge nor made any promise on their 
honor, forcibly or otherwise escape, and are captured again in battle after 
having rejoined their own army, they shall not be punished for their escape, 
but shall be treated as simple prisoners of war, although they will be 
subjected to stricter confinement. 

79. 

Every captured wounded enemy shall be medically treated, according to 
the ability of the medical staff. 

80. 

Honorable men, when captured, will abstain from giving to the enemy 
information concerning their own army, and the modern law of war permits 
no longer the use of any violence against prisoners in order to extort the 
desired information or to punish them for having given false information. 

81. 

Partisans are soldiers armed and wearing the uniform of their army, but 
belonging to a corps which acts detached from the main body for the purpose 
of making inroads into the territory occupied by the enemy. If captured, they 
are entitled to all the privileges of the prisoner of war. 

82. 

Men, or squads of men, who commit hostilities, whether by fighting, or 
inroads for destruction or plunder, or by raids of any kind, without 
commission, without being part and portion of the organized hostile army, 
and without sharing continuously in the war, but who do so with intermitting 
returns to their homes and avocations, or with the occasional assumption of 
the semblance of peaceful pursuits, divesting themselves of the character or 
appearance of soldiers — such men, or squads of men, are not public enemies, 
and, therefore, if captured, are not entitled to the privileges of prisoners of 
war, but shall be treated summarily as highway robbers or pirates. 

83. 

Scouts, or single soldiers, if disguised in the dress of the country or in the 
uniform of the army hostile to their own, employed in obtaining information, 
if found within or lurking about the lines of the captor, are treated as spies, 
and suffer death. 



42 

84. 

Armed prowlers, by whatever names they may be called, or persons of the 
enemy's territory, who steal within the lines of the hostile army for the 
purpose of robbing, killing, or of destroying bridges, roads, or canals, or of 
robbing or destroying mail, or of cutting the telegraph wires, are not entitled 
to the privileges of the prisoner of war. 

85. 

War-rebels are persons within an occupied territory who rise in arms 
against the occupying or conquering army, or against the authorities 
established by the same. If captured, they may suffer death, whether they 
rise singly, in small or large bands, and whether called upon to do so by their 
own, but expelled, government or not. They are not prisoners of war; nor are 
they if discovered and secured before their conspiracy has matured to an 
actual rising or armed violence. 

105. 

Exchanges of prisoners take place — number for number — rank for rank 
— wounded for wounded — with added condition for added condition — such, 
for instance, as not to serve for a certain period. 

106. 

In exchanging prisoners of war, such numbers of persons of inferior rank 
may be substituted as an equivalent for one of superior rank as may be agreed 
upon by cartel, which requires the sanction of the government, or of the 
commander of the army in the field. 

107. 

A prisoner of war is in honor bound truly to state to the captor his rank; and 
he is not to assume a lower rank then belongs to him, in order to cause a more 
advantageous exchange, nor a higher rank, for the purpose of obtaining 
better treatment. 

Offenses to the contrary have been justly punished by the commanders of 
released prisoners, and may be good cause for refusing to release such 
prisoners. 

108. 

The surplus number of prisoners of war remaining after an exchange has 
taken place is sometimes released either for the payment of a stipulated sum 
of money, or, in urgent cases, of provision, clothing, or other necessities. 

Such arrangement, however, requires the sanction of the highest 
authority. 

109. 

The exchange of prisoners of war is an act of convenience to both belliger- 
ents. If no general cartel has been concluded, it can not be demanded by 
either of them. No belligerent is obliged to exchange prisoners of war. 

A cartel is voidable as soon as either party has violated it. 

110. 

No exchange of prisoners shall be made except after complete capture, and 
after an accurate account of them, and a list of the captured officers, has been 
taken. 



43 

119. 
Prisoners of war may be released from captivity by exchange, and, under 
certain circumstances, also by parole. 

120. 
The term "parole" designates the pledge of individual good faith and honor 
to do, or to omit doing, certain acts after he who gives his parole shall have 
been dismissed, wholly or partially, from the power of the captor. 

121. 
The pledge of the parole is always an individual, but not a private act. 

122. 
The parole applies chiefly to prisoners of war whom the captor allows to 
return to their country, or to live in greater freedom within the captor's 
country or territory, on conditions stated in the parole. 

123. 
Release of prisoners of war by exchange is the general rule; release by 
parole is the exception. 

124. 
Breaking the parole is punished with death when the person breaking the 
parole is captured again. 

Accurate lists, therefore, of the paroled person must be kept by the 
belligerents. 

125. 
When paroles are given and received there must be an exchange of two 
written documents, in which the name and rank of the paroled individuals are 
accurately and truthfully stated. 

126. 
Commissioned officers only are allowed to give their parole, and they can 
give it only with the permission of their superior, as long as a superior in rank 
is within reach. 

127. 
No non-commissioned officer or private can give his parole except through an 
officer. Individual paroles not given through an officer are not only void, but 
subject the individuals giving them to the punishment of death as deserters. 
The only admissible exception is where individuals, properly separated from 
their commands, have suffered long confinement without the possibility of 
being paroled through an officer. 

128. 
No paroling on the battlefield; no paroling of entire bodies of troops after a 
battle; and no dismissal of large numbers of prisoners, with a general 
declaration that they are paroled, is permitted or of any value. 

129. 
In capitulations for the surrender of strong places or fortified camps the 
commanding officer, in cases of urgent necessity, may agree that the troops 
under his command shall not fight again during the war, unless exchanged. 



44 



130. 

The usual pledge given in the parole is not to serve during the existing war, 
unless exchanged. 

This pledge refers only to the active service in the field, against the 
paroling belligerent or his allies actively engaged in the same war. These 
cases of breaking the parole are patent acts, and can be visited with the 
punishment of death; but the pledge does not refer to internal service, such as 
recruiting or drilling the recruits, fortifying places not besieged, quelling civil 
commotions, fighting against belligerents unconnected with the paroling 
belligerents, or to civil or diplomatic service for which the paroled officer may 
be employed. 

131. 

If the government does not approve of the parole, the paroled officer must 
return into captivity, and should the enemy refuse to receive him, he is free of 
his parole. 

132. 

A belligerent government may declare, by a general order, whether it will 
allow paroling, and on what conditions it will allow it. Such order is 
communicated to the enemy. 

133. 

No prisoner of war can be forced by the hostile government to parole 
himself, and no government is obliged to parole prisoners of war, or to parole 
all captured officers, if it paroles any. As the pledging of the parole is an 
individual act, so is paroling, on the other hand, an act of choice on the part of 
the belligerent. 

146. 

Prisoners taken in the act of breaking an armistice must be treated as 
prisoners of war, the officer alone being responsible who gives the order for 
such a violation of an armistice. The highest authority of the belligerent 
aggrieved may demand redress for the infraction of an armistice. 



45 

DOCUMENT NO. 24 

GENEVA CONVENTION FOR THE AMELIORATION OF THE CON- 
DITION OF THE WOUNDED IN ARMIES IN THE FIELD 

(22 August 1864) 

SOURCES 
22 Stat. 940 
1 Bevans 7 
55BFSP43 

1 AJIL Supp. 90 
129 Parry 361 

NOTE 
This was the first of the series of humanitarian conventions drafted in 
Geneva. It has been superseded by its counterparts of 1906 (DOCUMENT 
NO. 32), 1929 (DOCUMENT NO. 48), and 1949 (DOCUMENT NO. 106). It 
and its successors are the true "Red Cross" Conventions, although this term 
in sometimes improperly used to include the other humanitarian conventions 
which had their origin in Geneva. 

EXTRACT 

Art. VI. Wounded or sick soldiers shall be entertained and taken care of, 
to whatever nation they may belong. 

Commanders-in-Chief shall have the power to deliver immediately to the 
outposts of the enemy soldiers who have been wounded in an engagement, 
when circumstances permit this to be done, and with the consent of both 
parties. 

Those who are recognized, after their wounds are healed, as incapable of 
serving, shall be sent back to their country. 

The others may also be sent back, on condition of not again bearing arms 
during the continuance of the war. 

Evacuations, together with the persons under whose directions they take 
place, shall be protected by an absolute neutrality. 



46 

DOCUMENT NO. 25 



UNITED STATES v. HENRY WIRZ 
(Washington, 24 October 1865) 



SOURCE 

8 American State Trials 657 

H.R. Executive Document No. 23, 40th 

Cong., 2nd Sess. (7 December 1867) 

NOTE 
This trial involved allegations of the maltreatment and murder of Union 
(Federal) prisoners of war by the accused, Captain Henry Wirz, formerly of 
the Confederate Army, who had been the commandant of the prisoner-of-war 
camp maintained by the Confederacy at Andersonville, Georgia, during the 
Civil War (1861-1865). The case was tried before a United States Military 
Commission sitting in Washington. Although, as usual, no opinion was 
written by the Military Commission, the charges and specifications, while 
employing a number of expressions which would now be considered obsolete, 
could otherwise have been used as the basis for charges perferred in many 
war crimes trials conducted after World War II (1939-1945). Although the 
word "traitorously" was used rather frequently in Charge 1 and its 
Specification, treason was not actually an issue and the Military Commission 
did not include the word in its findings. "Superior orders" was a defense. 



EXTRACTS 

CHARGES AND SPECIFICATIONS: 

Charge 1. 

Maliciously, willfully, and traitorously, and in aid of the then existing 
armed rebellion against the United States of America, on or before the first 
day of March, A. D. 1864, and on divers other days between that day and the 
tenth day of April, 1865, combining, confederating and conspiring together 
with John H. Winder, Richard B. Winder, Joseph White, W. S. Winder, R. 
R. Stevenson and others unknown, to injure the health and destroy the lives 
of soldiers in the military service of the United States, then held and being 
prisoners of war within the lines of the so-called Confederate States and in the 
military prisons thereof, to the end that the armies of the United States might 
be weakened and impaired, in violation of the laws and customs of war. 

Specification. 

In this, that he, the said Henry Wirz, did combine, confederate and 
conspire with them, the said John H. Winder, Richard B. Winder, Joseph 
White, W. S. Winder, R. R. Stevenson, and others whose names are 
unknown, citizens of the United States aforesaid, and who were then engaged 



47 

in armed rebellion against the United States, maliciously, traitorously, and in 
violation of the laws of war, to impair and injure the health and to destroy the 
lives — by subjecting to torture and great suffering, by confining in 
unhealthy and unwholesome quarters, by exposing to the inclemency of 
winter and to the dews and burning sun of summer, by compelling the use of 
impure water, and by furnishing insufficient and unwholesome food — of 
large numbers of Federal prisoners, to wit, the number of thirty thousand, 
soldiers in the military service of the United States of America, held as 
prisoners of war at Andersonville, in the State of Georgia, within the lines of 
the so— called Confederate States, on or before the first day of March, A.D. 

1864, and at divers times between that day and the tenth day of April, A. D. 

1865, to the end that the armies of the United States might be weakened and 
impaired, and the insurgents engaged in armed rebellion against the United 
States might be aided and comforted: And he, the said Henry Wirz, an officer 
in the military service of the so-called Confederate States, being then and 
there commandant of a military prison at Andersonville, in the State of 
Georgia, located by authority of the so-called Confederate States for the 
confinement of prisoners of war, and as such commandant fully clothed with 
authority, and in duty bound to treat, care and provide for such prisoners held 
as aforesaid as were or might be placed in his custody, according to the law of 
war, did, in furtherance of such combination, confederation and conspiracy, 
and incited thereunto by them, the said John H. Winder, Richard B. Winder, 
Joseph White, W. S. Winder, R. R. Stevenson and others whose names are 
unknown, maliciously, wickedly, and traitorously confine a large number of 
such prisoners of war, soldiers in the military service of the United States, to 
the amount of thirty thousand men, in unhealthy and unwholesome quarters, 
in a close and small area of ground, wholly inadequate to their wants and 
destructive to their health, which he well knew and intended; and while there 
so confined, during the time aforesaid, did, in furtherance of his evil design, 
and in aid of the said conspiracy, willfully and maliciously neglect to furnish 
tents, barracks or other shelter sufficient for their protection from the 
inclemency of winter and the dews and burning sun of summer; and with such 
evil intent did take and cause to be taken from them their clothing, blankets, 
camp equipage and other property of which they were possessed at the time 
of being placed in his custody; and with like malice and evil intent, did refuse 
to furnish or cause to be furnished, food either of a quality or quantity 
sufficient to preserve health and sustain life; and did refuse and neglect to 
furnish wood sufficient for cooking in summer, and to keep the said prisoners 
warm in winter, and did compel the said prisoners to subsist upon un- 
wholesome food, and that in limited quantities entirely inadequate to sustain 
health, which he well knew; and did compel the said prisoners to use 
unwholesome water, reeking with the filth and garbage of the prison and 
prison guard, and the offal and drainage of the cook-house of said prison, 
whereby the prisoners became greatly reduced in their bodily strength, and 
emaciated and injured in their bodily health, their minds impaired, and their 
intellects broken; and many of them towit, the number of ten thousand, 



48 



whose names are unknown, sickened and died by reason thereof, which he, the 
said Henry Wirz, then and there well knew and intended; and so knowing and 
evilly intending, did refuse and neglect to provide proper lodgings, food, or 
nourishment for the sick, and necessary medicine and medical attendance for 
the restoration of their health, and did knowingly, willfully and maliciously, 
in furtherance of his evil designs, permit them to languish and die from want 
of care and proper treatment; and the said Henry Wirz, still pursuing his evil 
purposes, did permit to remain in the said prison, among the emaciated sick 
and languishing living, the bodies of the dead, until they became corrupt and 
loathsome, and filled the air with fetid and noxious exhalations, and thereby 
greatly increased the unwholesomeness of the prison, insomuch that great 
numbers of said prisoners, towit, the number of one thousand, whose names 
are unknown, sickened and died by reason thereof. And the said Henry Wirz, 
still pursuing his wicked and cruel purpose, wholly disregarding the usages of 
civilized warfare, did, at the time and place aforesaid, maliciously and 
willfully subject the prisoners aforesaid to cruel, unusual, and infamous 
punishment upon slight, trivial and fictitious pretenses, by fastening large 
balls of iron to their feet, and binding large numbers of the prisoners aforesaid 
closely together, with large chains around their necks and feet so that they 
walked with the greatest difficulty; and, being so confined, were subjected to 
the burning rays of the sun often without food or drink for hours and even 
days, from which said cruel treatment large numbers, towit, the number of 
one hundred, whose names are unknown, sickened, fainted, and died: And he, 
the said Wirz, did further cruelly treat and injure said prisoners by 
maliciously confining them within an instrument of torture called "the 
stocks, "thus depriving them of the use of their limbs, and forcing them to lie, 
sit and stand for many hours without the power of changing position, and 
being without food or drink, in consequence of which many, towit, the 
number of thirty, whose names are unknown, sickened and died. And he, the 
said Wirz, still wickedly pursuing his evil purpose, did establish and cause to 
be designated within the prison inclosure containing said prisoners a "dead 
line," being a line around the inner face of the stockade, or wall inclosing said 
prison, and about twenty feet distant from and within said stockade; and 
having so established said dead line, which was in many places an imaginary 
line, and in many other places marked by insecure and shifting strips of 
boards nailed upon the top of small and insecure stakes or posts, he, the said 
Wirz, instructed the prison guard stationed around the top of said stockade to 
fire upon and kill any of the prisoners aforesaid who might touch, fall upon, 
pass over, or under, or across the said "dead line." Pursuant to which said 
orders and instructions, maliciously and needlessly given by said Wirz, the 
said prison guard did fire upon and kill a large number of said prisoners, 
towit, the number of about three hundred. And the said Wirz, still pursuing 
his evil purpose, did keep and use ferocious and bloodthirsty beasts, 
dangerous to human life, called bloodhounds, to hunt down prisoners of war 
aforesaid who made their escape from his custody, and did, then and there, 



49 

willfully and maliciously, incite and encourage the said beasts to seize, tear, 
mangle and maim the bodies and limbs of said fugitive prisoners of war who, 
during the time aforesaid, made their escape and were recaptured, and were 
by the said beasts then and there cruelly and inhumanly injured, insomuch 
that many of said prisoners, towit, the number of about fifty died: And the 
said Wirz, still pursuing his wicked purpose, and still aiding in carrying out 
said conspiracy, did use and cause to be used, for the pretended purpose of 
vaccination, impure and poisonous vaccine matter, which said impure and 
poisonous matter was then and there, by the direction and order of said Wirz, 
maliciously, cruelly, and wickedly deposited in the arms of many of said 
prisoners, by reason of which large numbers of the, towit, one hundred, lost 
the use of their arms, and many of them, towit, about the number of two 
hundred, were so injured that they soon thereafter died: All of which he, the 
said Henry Wirz, well knew and maliciously intended, and in aid of the then 
existing rebellion against the United States, with the view to assist in 
weakening and impairing the armies of the United States, and in furtherance 
of the said conspiracy, and with the full knowledge, consent and connivance of 
his co -conspirators aforesaid, he, the said Wirz, then and there did. 

Charge 2. 
Murder, in violation of the laws and customs of war. 
Specification 1. 
In this, that the said Henry Wirz, an officer in the military service of the 
so-called Confederate States of America, at Andersonville, in the State of 
Georgia, on or about the eighth day of July, A.D. 1864, then and there being 
commandant of a prison there located by the authority of the said so-called 
Confederate States for the confinement of prisoners of war taken and held as 
such from the armies of the United States of America, while acting as said 
commandant, feloniously, willfully and of his malice aforethought, did make 
an assault, and he, the said Henry Wirz, a certain pistol called a revolver then 
and there loaded and charged with gunpowder and bullets, which said pistol 
the said Henry Wirz in his hand then and there held, to, against, and upon a 
soldier belonging to the army of the United States, in his, the said Henry 
Wirz's custody as a prisoner of war, whose name is unknown, then and there 
feloniously, and of his malice aforethought, did shoot and discharge, inflicting 
upon the body of the soldier aforesaid a mortal wound with the pistol 
aforesaid, in consequence of which said mortal wound, murderously inflicted 
by the said Henry Wirz, the said soldier thereafter, towit, on the ninth day of 
July, A.D. 1864, died. 

Specification 2. 
In this, that the said Henry Wirz an officer in the military service of the 
so-called Confederate States of America, at Andersonville, in the State of 
Georgia, on or about the twentieth day of September, A.D. 1864, then and 
there being commandant of a prison there located by the authority of the said 
so-called Confederate States for the confinement of prisoners of war taken 
and held as such from the armies of the United States of America, while 



50 

acting as said commandant, feloniously, willfully, and of his malice 
aforethought, did jump upon, stamp, kick, bruise and otherwise injure with 
the heels of his boots, a soldier belonging to the army of the United States in 
his, the said Henry Wirz's custody as a prisoner of war, whose name is 
unknown, of which said stamping, kicking and bruising, maliciously done and 
inflicted by the said Wirz, he, the said soldier, soon thereafter, towit, on the 
twentieth day of September, A.D. 1864, died. 

Specification 5. 

In this, that the said Henry Wirz, an officer in the military service of the 
so— called Confederate States of America, at Andersonville, in the State of 
Georgia, on or about the twentieth day of August, A.D. 1864, then and there 
being commandant of a prison there located by the authority of the said 
so— called Confederate States for the confinement of prisoners of war taken 
and held as such from the armies of the United States of America, while acting 
as said commandant, feloniously, and of his malice aforethought, did confine 
and bind within an instrument of torture called "the stocks," a soldier 
belonging to the army of the United States, in his, the said Henry Wirz's, 
custody as a prisoner of war, whose name is unknown, in consequence of 
which said cruel treatment, maliciously and murderously inflicted as 
aforesaid, he, the said soldier, soon thereafter, towit, on the thirtieth day of 
August, A. D. 1864, died. 

October 18. 
THE PRISONER'S STATEMENT. 

The Judge- Advocate. According to my promise to the court I have 
endeavored to go over this case in a thorough way, but to give the prisoner 
the benefit of a mind in no way colored against him, I selected Mr. Hays, one 
of the official reporters, to draw up the argument for the defense, and he will 
now read to the court the prisoner's statement drawn up by Mr. Hays on 
suggestions made by Captain Wirz and now submitted with the approval of 
the prisoner. It will now be read. 

Captain Wirz. In this closing scene of a trial which must have wearied the 
patience of this honorable commission, and which has all but exhausted the 
little vitality left me, I appear to put on record my answer to the charges on 
which I am arraigned, and to protest and vindicate my innocence. I know how 
hard it is for one, helpless and unfriended as I am, to contend against the 
prejudices produced by popular clamor and long -continued misrepre- 
sentation, but I have great faith in the power of truth, and I have much 
confidence in the intelligence and impartiality of the officers who are my 
judges. I am here to answer for all my official and personal acts at 
Andersonville, and if I can convince this court that they have been void of 
offense before God and man, I trust that I shall not be held responsible for the 
official or personal misdeeds of others. That is all I ask. By my own acts let me 
judged, and if they have been such as to warrant my conviction on any one of 
the charges or specifications preferred against me, let me be visited with 
punishment commensurate with the offense. I do not ask mercy, but I 
demand justice; and I humbly pray that the God of justice will enlighten the 



51 

minds and quicken the perceptions of those whose solemn duty it is to 
discriminate between the truth and falsehood of all that has been testified to 
in the case. I will leave to my counsel the presentation and argument of such 
points of law as they may deem of importance, and will myself endeavor to 
analyze the evidence, group together the main facts, and explain away all that 
may seem to weigh so heavily against me. In doing so I will strive to be simple 
and concise, and let me beg the court to believe that I will be, above all things, 
frank and truthful. 

There are three distinct parts in which the prosecution and defense are 
necessarily comprised. These are: First. Had he, as charged, maliciously, 
willfully and traitorously combined, confederated and conspired with John H. 
Winder and others to injure the health and destroy the lives of soldiers in the 
military service of the United States? Second. And was he the person who 
was officially responsible for the privations and sufferings of the Federal 
prisoners at Andersonville? And, third, Had he committed the crime of 
murder, or perpetrated all or any of the atrocities laid to his charge? 

As to the first, he said he was not conscious of a particle of testimony going 
to substantiate the charge of conspiracy. Of the one hundred and sixty 
witnesses who have testified, no one ever heard a syllable, or saw an act 
indicative of his knowledge of the existence of such a hellish plot; nor was 
there the least scrap of paper found in his office, or a word in the archives of 
the Confederacy to show that such a conspiracy existed. Even if all the 
specifications which are grouped under the charge of conspiracy were 
literally true, there is not a shadow of evidence that the suffering was the 
result of a conspiracy . The Government itself did not believe in the existence 
of the conspiracy, from the fact that the names of Robert E. Lee, James A. 
Seddon, Lucius Northrop and Dr. Moore, who were indicted with the accused 
when he was first arraigned, had been stricken out. If the charge was true 
now, it was true then; and if there was guilt anywhere, it certainly lay more 
deep and damning on the souls of those who held high positions than on him 
who was a mere subaltern officer. He believed that what the Judge- 
Advocate principally relied upon as proof of the conspiracy, was the 
expression attributed to him (Wirz) that "he was of more service to the 
Confederate Government than any regiment in the front," connected with the 
equally wicked and significant expressions attributed to General Winder, 
General Cobb and Captain W. S. Winder. As to the remark attributed to 
himself, he would refer to that in another part of the defence. General Winder 
has gone to the great judgment seat. Howell Cobb was not allowed to come 
here and have an opportunity of contradicting the testimony referring to him. 
The Judge- Advocate thus virtually admitted what it was expected to prove 
by him. As to W. S. Winder, he was under the jurisdiction of the United 
States Government. Surely he could not be held to answer for their rash and 
impudent expressions. Furthermore, if he as a subaltern officer, simply 
obeyed the legal orders of his superiors in the discharge of his official duties, 
he could not be held responsible for the motive that dictated such orders. And 



52 

if he overstepped them and violated the laws of war, and outraged humanity, 
he should be tried and punished according to the measure of his offense. 

From his position at Anderson ville, he should not be held responsible for 
the crowded condition of the stockade, the unwholesome food, etc., for the 
following reasons, among others, viz: he was not responsible for the selection 
of the location, as it was located by W. S. Winder in 1863, while he was yet in 
Europe; that he did not assume command until March, 1864; that Colonel 
Persons, one of the principal witnesses for the prosecution, testified that the 
stockade was sufficiently large and properly located for the accomodation of 
ten thousand prisoners; that Colonel Persons' testimony fully exonerated him 
(Wirz) from complicity in the selection of the location, overcrowding the 
stockade, or failure to provide proper shelter for the prisoners; that Dr. Bates 
exonerated him from all blame on account of the condition of things in the 
hospital, and that his testimony was corroborated by Dr. Roy, and that 
Colonel D. T. Chandler, in his report to Richond, never once attached blame 
to Wirz for the condition of things in the hospital, and that his testimony was 
corroborated by Dr. Roy and that Colonel D. T. Chandler, in his report to 
Richmond, never once attached blame to Wirz for the condition of affairs at 
Andersonville. 

As to the third charge, that of murder, he hoped to be able to show the court 
that he was not guilty, and that he was not the monster he had been depicted; 
but that on the contrary, he did what little lay in his power to diminish or 
alleviate the miseries of the prisoners. The specifications accused him of no 
less than thirteen distinct crimes of the grade of murder; yet in no instance 
were the name, date, regiment or circumstances stated in the specifications, 
and in the whole mass of the testimony, there were but two cases of this 
character that could be fixed with any definiteness; and in these two cases he 
was prepared to make his defense. The two referred to were the actual, real 
case of "Chickamauga," and the mythical case described by the name of 
"William Stewart," who, it is alleged, was shot at the gate near the guard- 
house. 

With regard to Chickamauga, he would make the following correct 
statement: On the evening referred to, an officer went to his (Wirz's) 
headquarters, and said there was a man in the dead line jawing the guard and 
creating a great deal of excitement. He rode to the stockade, dismounted, and 
went inside and asked Chickamauga in a rough way, "What in the hell he was 
doing there?" Chickamauga replied that "he wanted to be killed." He (Wirz) 
replied that"If that was all he wanted, he would soon have it." He then drew 
his revolver to menace Chickamauga, and the latter became frightened and 
went outside the dead-line. Wirz then ordered the guard to fire upon the 
cripple if he again approached the dead-line. He never supposed that 
Chickamauga's friends would allow him again to go near the forbidden line. 
Wirz then went out of the stockade, and was on his way to his quarters when 
he heard the report of a musket, and going back and mounting the 
sentry-box, he found that Chickamauga had been shot. He was shot for a 
violation of a rule of prison discipline; a rule absolutely necessary at 



53 

Anderson ville, and one not unusual, for it was enforced in nearly all the 
military prisons in the South; besides, the rules were printed and posted in 
conspicuous places. 

With regard to the other alleged case of shooting, it differed from that of 
Chickamauga in that the alleged victim, "William Stewart," had the good 
fortune never to have been at the Andersonville stockade. The man could not 
be found on the books of the prison, the hospital record, or the death register. 
As this testimony came from a man named Gray, who had prevaricated 
overmuch, his statement was not entitled to the least credence. 

So as to the evidence of Alcok, who testified to having been robbed, and to 
Wirz ordering men to be bayoneted on the occasion of their removal for 
exchange. The testimony of Colonel Fanning shows that he had nothing to do 
with the employment of the dogs. 

The allegation that furloughs were granted to soldiers for shooting 
prisoners was pronounced an absurd camp rumor. He denies that the 
prisoners were ever deprived of rations as a punishment. 

On only one occasion was the whole camp deprived of rations, and that was 
on the 4th of July, when there was a difficulty with the raiders, and the quar- 
termaster could not distribute the rations. He denies the exercise of personal 
violence toward the prisoners. His physical condition was such that he could 
not have knocked a man down, and he quotes from the testimony of Father 
Whalen, Dr. Roy and others who had opportunities of observation, to show 
that such a thing never occurred as his beating or shooting a prisoner. 

He quoted from Colonel Chandler's report to show that when the prisoners 
were inquired of as to their treatment, they never once mentioned his 
(Wirz's) name. He acknowledges that two of the prisoners were whipped, viz: 
Bardo, for disguising himself as a negro (but not by Wirz's order, as appears 
by Bardo's own acknowledgement), and the negro Hawkins, for offering a 
gross insult to a white lady. He denies having used the expression that he was 
doing more for the Confederacy than any regiment at the front. The remark 
made was that he had a larger command than any general in the field, and this 
was tortured into the remark first above mentioned. The remark at the 
graveyard that "the Yankees were getting the land they came for," was 
actually made, but not by him (Wirz), but by another officer who was present. 

And here I will close with one or two final remarks. The court will observe 
that in this statement I have studiously avoided any deviation from the strict, 
legitimate path of my defense. I have not said a word to bring discredit upon 
any officer of the late Confederate or of the Federal Government. I have not 
attempted to complicate the case with any allusions as to where the 
responsibility rested for non-exchange of prisoners of war. 

Closely connected as that question is with the general subject, it has 
nothing to do with the subject of my guilt or innocence. If I were rash or 
imprudent enough to touch that question it might be imputed to me as an 
acknowledgment of the weakness of my case. I want all the sympathy, good 
feeling and confidence of this court too much to say or do anything that might 
give offense. It is composed of brave, honorable and enlightened officers, who 



54 

have the ability, I am sure, to distinguish the real from the fictitious in this 
case, the honesty to rise above popular clamor and public misrepresentations, 
and who have names and reputations to transmit to history, and to leave 
unimpaired to their descendants. I cannot believe that they will either darken 
their intellect or prostitute their independence for the sake of crushing out 
the last faint embers of a life that is just ebbing out. I cannot believe that they 
will consent to let the present and future generations say of them that they 
stepped down from their high positions, at the bidding of power, or at the 
more reckless dictate of ignorant, widespread prejudice, to consign to a 
felon's doom a poor subaltern officer, who, in a difficult post, sought to do his 
duty and did it. The statement, which I now close, will probably survive me 
and you alike. It will stand as a complete answer to all the mass of 
misrepresentation heaped upon me. May God so direct and enlighten you in 
your deliberations that your reputation for impartiality and justice may be 
upheld, my character vindicated, and the few days of my natural life spared to 
my helpless family. 

THE JUDGE ADVOCATE'S ARGUMENT. 

October 20. 

Colonel Chipman. May it please the Court: Deeply sensible of the 
importance and solemnity with which you have clothed this trial, and 
quickened, as I know you are, to a high sense of duty by the obligation you 
have taken to "well and truly try and determine, according to the evidence, 
the matter now before you between the United States of America and the 
prisoner to be tried, and to duly administer justice according to your 
conscience, the best of your understanding, and the custom of war," no word 
of mine is needed to increase the impressiveness of this occasion. 

In many of its aspects and bearings this trial presents features more 
startling, more extraordinary, and more momentous than are found in the 
whole annals of jurisprudence from the record this long black catalogue of 
crimes, these tortures unparalleled, these murders by starvation, implacable 
as could have been perpetrated had the spirit of darkness controlled them, 
there are yet many, very many, phases of Anderson ville prison life that I 
must leave unnoticed. 

Has there been any defense made to these horrors? Is there any palliation 
for their perpetrators? Lives there a witness who has denied or can deny 
them? The counsel for the prisoner had unlimited control of the strong arm of 
the government; he has had days and weeks for preparation; he has, as all 
must admit, labored sedulously and untiringly for his client, constituting 
himself at the same time counsel for his co-conspirators, yet, with all his 
efforts, so earnestly put forth, he has utterly, signally failed. The special acts 
of cruelty committed by the prisoner at the bar he has sought to explain; with 
what success I leave to you to judge. The general management and discipline, 
and his responsibility for the same while at Anderson ville, he has sought to 
deny by showing the presence at that place of a superior officer, General 
Winder, who, he alleges, had chief control. All this is swept away by the fact 



55 

that before General Winder's arrival the fearful rigors of that prison began; 
they continued during his stay, from June till October, and they subsided only 
in proportion as the number of prisoners became less, after General Winder's 
departure. And notwithstanding his earnest appeal, made to you in his final 
statement, begging that he, a poor subaltern, acting only in obedience to his 
superior, should not bear the odium and punishment deserved, with 
whatever force these cries of a desperate man, in a desperate and terrible 
strait may come to you, there is no law, no sympathy, no code of morals, that 
can warrant you in refusing to let him have all justice, because the lesser and 
not the greater criminal is on trial. 



THE VERDICT AND SENTENCE. 

October 21+. 

Today the Court announced its decision as follows: 

It finds the accused, Henry Wirz, of Charge I, "Guilty," viz.: that he did 
combine, confederate and conspire with John H. Winder, Richard B. Winder, 
W. S. Winder, R. Stevenson, and others, names unknown, engaged in armed 
rebellion against the United States, against the laws of war, to impair and 
injure the health, and to destroy the lives of large numbers of Federal 
prisoners, to- wit: 45,000 at Andersonville. 

Of Specification first to Charge II, "Guilty. 

Of Specification second to Charge II, "Guilty." 

Of Specification third to Charge II, "Guilty." 

Of Specification four to Charge II, "Not Guilty." 

Of Specification five to Charge II, "Guilty." 

Of Specification six to Charge II, "Guilty." 

Of Specification seven to Charge II, "Guilty." 

Of Specification eight and nine to Charge II, "Guilty." 

Of Specification ten to Charge II, "Not Guilty." 

Of Specification eleven to Charge II, "Guilty." 

Of Specification twelve to Charge II, "Guilty." 

Of Specification thirteen to Charge II, "Not Guilty." 

And the Commission does therefore sentence him, the said Henry Wirz, "to 
be hanged by the neck till he be dead, at such time and place as the President 
of the United States may direct, two-thirds of the court concurring therein." 

"November 3, 1865. 

"The proceedings, findings, and sentence of the court in the within case are 
approved, and it is ordered that the sentence be carried into execution by the 
officer commanding the Department of Washington on Friday, the 10th day of 
November, 1865, between the hours of 6 o'clock a. m., and 12 o'clock noon. 

Andrew Johnson, President." 



56 

THE EXECUTION. 

Washington, D. C., Nov. 11, 1865. 
I have the honor to report that the sentence and orders of the President in 
the case of Henry Wirz have been duly executed (between the hours of 10 and 
11a. m.), yesterday, November 10, and his body has been interred by the side 
of Atzerodt in the Arsenal grounds. 
To the Adjutant General of the Army. 

C. C. Augur, 

Major General Commanding 
Department of Washington. 



57 
DOCUMENT NO. 26 

ADDITIONAL ARTICLES RELATING TO THE CONDITION OF THE 
WOUNDED OF ARMIES IN THE FIELD 

(20 October 1868) 

SOURCES 
22 Stat. 946 

73BFSP1111 

1 AJIL Supp. 192 
138 Parry 189 



NOTE 
These articles were drafted, in part, with the objective of extending 
protections contained in the 1864 Geneva Convention (DOCUMENT NO. 24) 
to naval forces. There appears to be some uncertainty as to whether they ever 
actually entered into force. However, they did at least provide guidelines for 
several major conflicts, including the Spanish-American War (1898). The 
1899 Hague III Convention (DOCUMENT NO. 29) was probably the first 
effective treaty to extend protection to the sick, wounded, and shipwrecked 
at sea. 

EXTRACTS 

Art. V. In addition to Article VI. of the Convention, it is stipulated that, 
with the reservation of officers whose detention might be important to the 
fate of arms and within the limits fixed by the second paragraph of that 
article, the wounded fallen into the hands of the enemy shall be sent back to 
their country, after they are cured, or sooner if possible, on condition, 
neverthelesss, of not again bearing arms during the continuance of the war. 

[Articles concerning the Marine.] 

Art. VI. The boats which, at their own risk and peril, during and after an 
engagement pick up the shipwrecked or wounded, or which having picked 
them up, convey them on board a neutral or hospital ship, shall enjoy, until 
the accomplishment of their mission, the character of neutrality, as far as the 
circumstances of the engagement and the position of the ships engaged will 
permit. 

The appreciation of these circumstances is entrusted to the humanity of all 
the combatants. The wrecked and wounded thus picked and saved must not 
serve again during the continuance of the war. 

Art. XI. Wounded or sick sailors and soldiers, when embarked, to 
whatever nation they may belong, shall be protected and taken care of by 
their captors. 

Their return to their own country is subject to the provisions of Article VI. 
of the Convention, and of the additional Article V. 



58 

DOCUMENT NO. 27 

DECLARATION OF BRUSSELS 

(27 August 1874) 

SOURCES 
1 AJIL Supp. 96 
65 BFSP 1059 

NOTE 

The international (European) community having successfully negotiated 
the 1864 Geneva Red Cross Convention (DOCUMENT NO. 24) and the 1868 
Declaration of St. Petersburg (prohibiting the use of explosive or fulminating 
projectiles weighing less than 400 grams), the Tsar of Russia convened a 
Diplomatic Conference at Brussels in July 1874 with the considerably broader 
objective of deliberating on the draft of "an international agreement 
respecting the laws and customs of war." Although the Declaration which 
resulted from the deliberations of that conference, many of the provisions of 
which bear a striking resemblance to Lieber's Code (DOCUMENT NO. 23), 
never became effective for lack of ratifications, it is the obvious progenitor of 
the 1899 Hague II Regulations (DOCUMENT NO. 28) and of the 1907 Hague 
IV Regulations (DOCUMENT NO. 33). 

- EXTRACTS 

IX. The laws, rights, and duties of war are applicable not only to the army, 
but likewise to militia and corps of volunteers complying with the following 
conditions: 

1. That they have at their head a person responsible for his subordinates; 

2. That they wear some settled distinctive badge recognizable at a distance; 

3. That they carry arms openly; and 

4. That, in their operations, they conform to the laws and customs of war. 
In those countries where the militia forms the whole or part of the army, 

they shall be included under the denomination of "army." 

X. The population of a non-occupied territory, who, on the approach of the 
enemy, of their own accord take up arms to resist the invading troops, 
without having had time to organize themselves in conformity with Article 
IX, shall be considered as belligerents, if they respect the laws and customs of 
war. 

XI. The armed forces of the belligerents may be composed of combatants 
and non-combatants. In the event of being captured by the enemy, both one 
and the other shall enjoy the rights of prisoners of war. 

XXI. If a spy who rejoins the army to which he belongs is subsequently 
captured by the enemy, he is to be treated as a prisoner of war, and incurs no 
responsibility for his previous acts. 

XXII. Military men (les militaires) who have penetrated within the zone of 
operations of the enemy's army, with the intention of collecting information, 
are not considered as spies if it has been possible to recognize their military 
character. 



59 

In like manner military men (and also non-military persons carrying out 
their mission openly) charged with the transmission of despatches either to 
their own army or to that of the enemy, shall not be considered as spies if 
captured by the enemy. 

To this class belong, also, if captured, individuals sent in balloons to carry 
despatches, and generally to keep up communications between the different 
parts of an army, or of a territory. 

XXIII. Prisoners of war are lawful and disarmed enemies. They are in the 
power of the enemy's Government, but not of the individuals or of the corps 
who made them prisoners. 

They should be treated with humanity. 

Every act of insubordination authorizes the necessary measures of 
severity to be taken with regard to them. 

All their personal effects except their arms are considered to be their own 
property. 

XXIV. Prisoners of war are liable to internment in a town, fortress, camp, 
or in any locality whatever, under an obligation not to go beyond certain fixed 
limits; but they may not be placed in confinement (enfermes) unless 
absolutely necessary as a measure of security. 

XXV. Prisoners of war may be employed on certain public works which 
have no immediate connection with the operations in the theater of war, 
provided the employment be not excessive, nor humilitating to their military 
rank, if they belong to the army, or to their official or social position, if they do 
not belong to it. 

They may also, subject to such regulations as may be drawn up by the 
military authorities, undertake private work. 

The pay they receive will go towards ameliorating their position or will be 
placed to their credit at the time of their release. In this case the cost of their 
maintenance may be deducted from their pay. 

XXVI. Prisoners of war cannot be compelled in any way to take any part 
whatever in carrying on the operations of the war. 

XXVII. The Government, in whose power are the prisoners of war 
undertakes to provide for their maintenance. 

The conditions of such maintenance may be settled by a mutual un- 
derstanding between the belligerents. 

In default of such an understanding, and as a general principal, prisoners of 
war shall be treated, as regards food and clothing, on the same footing as the 
troops of the Government who made them prisoners. 

XXVIII. Prisoners of war are subject to the laws and regulations in force in 
the army in whose power they are. 

Arms may be used, after summoning, against a prisoner attempting to 
escape. If retaken, he is subject to summary punishment (peines dis- 
ciplinaires) or to a stricter surveillance. 

If, after having escaped, he is again made prisoner, he is not liable to any 
punishment for his previous escape. 

XXIX. Every prisoner is bound to declare, if interrogated on the point, his 



60 

true name and rank, and in the case of his infringing this rule he will incur a 
restriction of the advantages granted to the prisoners of the class to which he 
belongs. 

XXX. The exchange of prisoners of war is regulated by mutual agreement 
between belligerents. 

XXXI. Prisoners of war may be released on parole if the laws of their 
country allow it, and in such a case are bound on their personal honour to fulfil 
scrupulously, as regards their own Government, as well as that which made 
them prisoners, the engagements they have undertaken. 

In the same case their own Government should neither demand nor accept 
from them any service contrary to their parole. 

XXXII. A prisoner of war cannot be forced to accept release on parole, nor 
is the enemy's Government obliged to comply with the request of a prisoner 
claiming to be released on parole. 

XXXIII. Every prisoner of war liberated on parole, and retaken carrying 
arms against the Government to which he had pledged his honour, may be 
deprived of the rights accorded to prisoners of war, and may be brought 
before the tribunals. 

XXXIV. Persons in the vicinity of armies, but who do not directly form 
part of them, such as correspondents, newspaper reporters, "vivandiers," 
contractors, etc., may also be made prisoners of war. 

These persons should, however, be furnished with a permit issued by a 
competent authority, as well as with a certificate of identity. 

XXXV. The duties of belligerents, with regard to the treatment of sick and 
wounded, are regulated by the Convention of Geneva of the 22d August, 
1864, subject to the modifications which may be introduced into that 
convention. 

LIII. The neutral State receiving in its territory troops belonging to the 
belligerent armies will intern them, so far as it may be possible away from the 
theater of war. 

They may be kept in camps, or even confined in fortresses or in places 
appropriated to this purpose. 

It will decide whether the officers may be released on giving their parole 
not to quit the neutral territory without authority. 

LIV. In default of a special agreement, the neutral State which receives 
the belligerent troops will furnish the interned with provisions, clothing, and 
such aid as humanity demands. 

The expenses incurred by the internment will be made good at the 
conclusion of peace. 

LV. The neutral State may authorize the transport across its territory of 
the wounded and sick belonging to the belligerent armies, provided that the 
trains which convey them do not carry either the person nel or material of war. 

In this case the neutral State is bound to take the measures necessary for 
the safety and control of the operation. 

LVI. The Convention of Geneva is applicable to the sick and wounded 
interned on neutral territory. 



61 
DOCUMENT NO. 28 

1899 HAGUE CONVENTION II WITH RESPECT TO THE LAWS AND 
CUSTOMS OF WAR ON LAND (With Annexed Regulations) 

(29 July 1899) 

SOURCES 
32 Stat. 1803 

1 Bevans 247 
91 BFSP 988 

1 AJIL Supp. 129 

NOTE 

On 21 August 1898 the Foreign Minister of Russia surprised the members 
of the diplomatic corps in St. Petersburg by handing each of them an Imperial 
Rescript proposing an international conference to consider ways for ending 
the armament competition. While the conference which met at The Hague on 
18 May 1899 as a result of this proposal failed completely to accomplish the 
major purpose which had been specified by Tsar Nicholas II in convening it, it 
did succeed in drafting several conventions, including the present one, a 
revision of the 1874 Declaration of Brussels (DOCUMENT NO. 27), which 
were acceptable to and were ratified by most of the governments of the then 
world community. All of the conventions drafted by this conference were 
signed on 29 July 1899. 

EXTRACTS 
PREAMBLE: 

Until a more complete code of the laws of war is issued, the High 
Contracting Parties think it right to declare that in cases not included in the 
Regulations adopted by them, populations and belligerents remain under the 
protection and empire of the principles of international law, as they result 
from the usages established between civilized nations, from the laws of 
humanity, and the requirements of the public conscience; 

CONVENTION: 

Article I. 
The High Contracting Parties shall issue instructions to their armed land 
forces, which shall be in conformity with the "Regulations respecting the 
Laws and Customs of War on Land" annexed to the present Convention. 

REGULATIONS: 

REGULATIONS RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND. 

SECTION I. —On Belligerents. 
Chapter I. — On the Qualifications of Belligerents. 

Article I. 
The laws, rights, and duties of war apply not only to armies, but also to 
militia and volunteer corps, fulfilling the following conditions: 



62 

1. To be commanded by a person responsible for his subordinates; 

2. To have a fixed distinctive emblem recognizable at a distance; 

3. To carry arms openly; and 

4. To conduct their operations in accordance with the laws of war. 

In countries where militia or volunteer corps constitute the army, or form 
part of it, they are included under the denomination "army." 

Article II. 
The population of a territory which has not been occupied who, on the 
enemy's approach, spontaneously take up arms to resist the invading troops 
without having time to organize themselves in accordance with Article I, 
shall be regarded a belligerent, if they respect the laws and customs of war. 

Article III. 
The armed forces of the belligerent parties may consist of combatants and 
non-combatants. In case of capture by the enemy both have a right to be 
treated as prisoners of war. 

Chapter II. — On Prisoners of War. 
Article IV. 
Prisoners of war are in the power of the hostile Government, but not in that 
of the individuals or corps who captured them. 
They must be humanely treated. 

All their personal belongings, except arms, horses, and military papers 
remain their property. 

Article V. 
Prisoners of war may be interned in a town, fortress, camp, or any other 
locality, and bound not to go beyond certain fixed limits; but they can only be 
confined as an indispensable measure of safety. 

Article VI. 

The State may utilize the labor of prisoners of war according to their rank 
and aptitude. Their tasks shall not be excessive, and shall have nothing to do 
with the military operations. 

Prisoners may be authorized to work for the Public Service, for private 
persons, or on their own account. 

Work done for the State shall be paid according to the tariffs in force for 
soldiers of the national army employed on similar tasks. 

When the work is for other branches of the Public Service or for private 
persons, the conditions shall be settled in agreement with the military au- 
thorities. 

The wages of the prisoners shall go towards improving their position, and 
the balance shall be paid them at the time of their release, after deducting the 
cost of their maintenance. 

Article VII. 

The Government into whose hands prisoners of war have fallen is bound to 
maintain them. 

Failing a special agreement between the belligerents, prisoners of war 
shall be treated as regards food, quarters, and clothing, on the same footing 
as the troops of the Government which has captured them. 



63 

Article VIII. 

Prisoners of war shall be subject to the laws, regulations, and orders in 
force in the army of the State into whose hands they have fallen. 

Any act of insubordination warrants the adoption, as regards them, of such 
measures of severity as may be necessary. 

Escaped prisoners, recaptured before they have succeeded in rejoining 
their army, or before quitting the territory occupied by the army that 
captured them, are liable to disciplinary punishment. 

Prisoners who, after succeeding in escaping are again taken prisoners, are 
not liable to any punishment for the previous flight. 

Article IX. 

Every prisoner of war, if questioned, is bound to declare his true name and 
rank, and if he disregards this rule, he is liable to a curtailment of the 
advantages accorded to the prisoners of war of his class. 

Article X. 

Prisoners of war may be set at liberty on parole if the laws of their country 
authorize it, and, in such a case, they are bound, on their personnal honour, 
scrupulously to fulfill, both as regards their own Government and the 
Government by whom they were made prisoners, the engagements they have 
contracted. 

In such cases, their own Government shall not require of nor accept from 
them any service incompatible with the parole given. 

Article XI. 

A prisoner of war can not be forced to accept his liberty on parole; similarly 
the hostile Government is not obliged to assent to the prisoner's request to be 
set at liberty on parole. 

Article XII. 

Any prisoner of war, who is liberated on parole and recaptured, bearing 
arms against the Government to whom he had pledged his honor, or against 
the allies of that Government, forfeits his right to be treated as a prisoner of 
war, and can be brought before the Courts. 

Article XIII. 

Individuals who follow an army without directly belonging to it, such as 
newspaper correspondents and reporters, sutlers, contractors, who fall into 
the enemy's hands, and whom the latter think fit to detain, have a right to be 
treated as prisoners of war, provided they can produce a certificate from the 
military authorities of the army they were accompanying. 

Article XIV. 

A Bureau for information relative to prisoners of war is instituted, on the 
commencement of hostilities, in each of the belligerent States, and, when 
necessary, in the neutral countries on whose territory belligerents have been 
received. This Bureau is intended to answer all inquiries about prisoners of 
war, and is furnished by the various services concerned with all the necessary 
information to enable it to keep an individual return for each prisoner of war. 
It is kept informed of internments and changes, as well as of admissions into 
hospital and deaths. 



64 

It is the duty of the Information Bureau to receive and collect all objects of 
personal use, valuables, letters, &c, found on the battlefields or left by 
prisoners who have died in hospital or ambulance, and to transmit them to 
those interested. 

Article XV. 

Relief Societies for prisoners of war, which are regularly constituted in 
accordance with the law of the country with the object of serving as the 
intermediary for charity, shall receive from the belligerents for themselves 
and their duly accredited agents every facility, within the bounds of military 
requirements and Administrative Regulations, for the effective accom- 
plishment of their humane task. Delegates of these Societies may be admitted 
to the places of internment for the distribution of relief, as also to the halting 
places of repatriated prisoners, if furnished with a personal permit by the 
military authorities, and on giving an engagement in writing to comply with 
all their Regulations for order and police. 

Article XVI. 

The Information Bureau shall have the privilege of free postage. Letters, 
money orders, and valuables, as well as postal parcels destined for the 
prisoners of war or dispatched by them, shall be free of all postal duties both 
in the countries of origin and destination, as well as in those they pass 
through. 

Gifts and relief in kind for prisoners of war shall be admitted free of all 
duties of entry and others, as well as of payment for carriage by the 
Government railways. 

Article XVII. 

Officers taken prisoners may receive, if necessary, the full pay allowed 
them in this position by their country's regulations, the amount to be repaid 
by their Government. 

Article XVIII. 

Prisoners of war shall enjoy every latitude in the exercise of their religion, 
including attendance at their own church services, provided only they comply 
with the regulations for order and police issued by the military authorities. 

Article XIX. 

The" wills of prisoners of war are received or drawn up on the same 
conditions as for soldiers of the National Army. 

The same rules shall be observed regarding death certificates, as well as for 
the burial of prisoners of war, due regard being paid to their grade and rank. 

Article XX. 

After the conclusion of peace, the repatriation of prisoners of war shall take 
place as speedily as possible. 

Chapter III. — On the Sick and Wounded. 
Article XXI. 

The obligations of belligerents with regard to the sick and wounded are 
governed by the Geneva Convention of the 22nd August, 1864, subject to any 
modifications which may be introduced into it. 



65 

DOCUMENT NO. 29 

1899 HAGUE CONVENTION III FOR THE ADAPTATION TO 

MARITIME WARFARE OF THE PRINCIPLES OF THE GENEVA 

CONVENTION OF AUGUST 22, 1864 

(29 July 1899) 

SOURCES 

32 Stat. 1827 

1 Bevans 263 
91 BFSP 1002 

1 AJIL Supp. 159 

NOTE 
In 1868 "Additional Articles" (DOCUMENT NO. 26) to the 1864 Geneva 
Red Cross Convention (DOCUMENT NO. 24) had been drafted, adapting to 
maritime warfare the provisions of the 1864 Convention applicable to the 
wounded and sick of armies in the field. These "Additional Articles" probably 
never entered into force. The 1899 Conference, meeting shortly after the end 
of the Spanish- American War (1898), which had been primarily a naval 
conflict, was more successful in obtaining acceptance of its adaptation of the 
1864 Convention, with appropriate modifications and additions, to maritime 
warfare. Like all of the 1899 agreements, it was signed on 29 July 1899. 

EXTRACTS 
Article VII. 

The religious, medical, or hospital staff of any captured ship is inviolable, 
and its members cannot be made prisoners of war. On leaving the ship they 
take with them the objects and surgical instruments which are their own 
private property. 

This staff shall continue to discharge its duties while necessary, and can 
afterwards leave when the Commander-in-Chief considers it possible. 

The belligerents must guarantee to the staff that has fallen into their hands 
the enjoyment of their salaries intact. 

Article VIII. 

Sailors and soldiers who are taken on board when sick or wounded, to 
whatever nation they belong, shall be protected and looked after by the 
captors. 

Article IX. 

The shipwrecked, wounded, or sick of one of the belligerents who fall into 
the hands of the other, are prisoners of war. The captor must decide, 
according to circumstances, if it is best to keep them or send them to a port of 
his own country, to a neutral port, or even to a hostile port. In the last case, 
prisoners thus repatriated cannot serve as long as the war lasts. 



66 

DOCUMENT NO. 30 

TREATY OF VEREENIGING (TREATY OF PEACE BETWEEN THE 

ORANGE FREE STATE AND THE SOUTH AFRICAN REPUBLIC 

WITH GREAT BRITAIN, 31 MAY 1902) 

SOURCES 
95 BFSP 160 
2 Israel 1145 

NOTE 
This treaty, which brought to an end the so-called Boer War (1899-1902), 
was negotiated at Vereeniging in South Africa but was actually signed at 
Pretoria. By the provision quoted below the British reserved the right to try 
those individuals who had violated the law of war during the course of the 
conflict. This, of course, would have included any cases of maltreatment of 
prisoners of war. (It is only appropriate to note that the treatment of 
prisoners of war by the Boer authorities themselves was exemplary. Winston 
Churchill, the most famous of those prisoners of war, implicitly admits this in 
his book dealing with that war.) 

EXTRACT 
4. No proceedings, civil or criminal, will be taken against any of the 
burghers surrendering or so returning for any acts in connection with the 
prosecution of the war. The benefit of this clause will not extend to certain 
acts, contrary to usages of war, which have been notified by the Commander- 
in-Chief to the Boer Generals, and which shall be tried by court-martial 
immediately after the close of hostilities. 



67 

DOCUMENT NO. 31 

THE "USAGES OF WAR ON LAND" (KRIEGSBRAUCH IM 
LANDKRIEGE) (c. 1902) 

SOURCES 
Morgan, The German War Book 51 (1915) 
Bernhardi, Britain as Germany's Vassal 240 
(Becker trans. , 1914) 

NOTE 
Shortly after the 1899 Hague Conference which had drafted the 1899 
Hague Convention II (DOCUMENT NO. 28), and probably in 1902, a "War 
Book," really a military manual on the law of war on land and bearing the 
official name Kriegsbrauch im Landkriege, was issued by the German 
General Staff. It was generally similar in form to the manuals on the law of 
war on land issued by many armies. (See, for example, DOCUMENT NO. 138 
and DOCUMENT NO. 141.) It received little publicity at the time despite the 
fact that it had been issued under the imprimatur of the German General 
Staff. A French scholar promptly pointed out that if this volume represented 
German military legal doctrine, as it apparently did, then in many respects 
that doctrine was in conflict with the 1899 Hague Convention II and its 
Annexed Regulations. (Carpentier, Les lots de la guerre continentale [1904 
and 1916].) J. H. Morgan, an English lawyer, was one of the leaders in 
publicizing the contents of the War Book. His book, which is one of the rare 
sources for the complete German War Book in English, contains a discussion 
of that book, followed by the translation thereof. (It is interesting to note the 
War Book's laudatory comment concerning the prisoner-of-war provision of 
the 1785 Prussian-United States treaty [DOCUMENT NO. 7].) 

EXTRACTS 

2. Capture of Enemy Combatants 

If individual members or parties of the army fall into the power of the 
enemy's forces, either through their being disarmed and defenceless, or 
through their being obliged to cease from hostilities in consequence of a 
formal capitulation, they are then in the position of "prisoners of war," and 
thereby in some measure exchange an active for a passive position. 

According to the older doctrine of international law all persons belonging to 
the hostile State, whether combatants or non-combatants, who happen to fall 
into the hands of their opponent, are in the position of prisoners of war. He 
could deal with them according to his pleasure, ill-treat them, kill them, lead 
them away into bondage, or sell them into slavery. History knows but few 
exceptions to this rule, these being the result of particular treaties. In the 
Middle Ages the Church tried to intervene as mediator in order to ameliorate 
the lot of the prisoners, but without success. Only the prospect of ransom, and 
chivalrous ideas in the case of individuals, availed to give any greater 



68 

protection. It is to be borne in mind that the prisoners belonged to him who 
had captured them, a conception which began to disappear after the Thirty 
Years War. The treatment of prisoners of war was mostly harsh and 
inhuman; still, in the seventeenth century, it was usual to secure their lot by a 
treaty on the outbreak of a war. 

The credit of having opened the way to another conception of war captivity 
belongs to Frederick the Great and Franklin, inasmuch as they inserted in 
the famous Treaty of Friendship, concluded in 1785 between Prussia and 
North America, entirely new regulations as to the treatment of prisoners of 
war. 

The complete change in the conception of war introduced in recent times 
has in consequence changed all earlier ideas as to the position and treatment 
of prisoners of war. Starting from the principle that only States and not 
private persons are in the position of enemies in time of war, and that an 
enemy who is disarmed and taken prisoner is no longer an object of attack, the 
doctrine of war captivity is entirely altered and the position of prisoners has 
become assimilated to that of the wounded and the sick. 

The present position of international law and the law of war on the subject 
of prisoners of war is based on the fundamental conception that they are the 
captives not of private individuals, that is to say of Commanders, Soldiers, or 
Detachments of Troops, but that they are the captives of the State. But the 
State regards them as persons who have simply done their duty and obeyed 
the commands of their superiors, and in consequence views their captivity not 
as penal but merely as precautionary. 

It therefore follows that the object of war captivity is simply to prevent the 
captives from taking any further part in the war, and that the State can, in 
fact, do everything which appears necessary for securing the captives, but 
nothing beyond that. The captives have therefore to submit to all those 
restrictions and inconveniences which the purpose of securing them 
necessitates; they can collectively be involved in a common suffering if some 
individuals among them have provoked sterner treatment; but, on the other 
hand, they are protected against unjustifiable severities, ill-treatment, and 
unworthy handling; they do, indeed, lose their freedom, but not their rights; 
war captivity is, in other words, no longer an act of grace on the part of the 
victor but a right of the defenceless. 

According to the notions of the laws of war to-day the following persons are 
to be treated as prisoners of war: 

1. The Sovereign, together with those members of his family who were 
capable of bearing arms, the chief of the enemy's State, generally 
speaking, and the Ministers who conduct its policy even though they are 
not among the individuals belonging to the active army. 

2. All persons belonging to the armed forces. 

3. All Diplomatists and Civil Servants attached to the army. 

4. All civilians staying with the army, with the approval of its Com- 
manders, such as transport, suiters, contractors, newspaper cor- 
respondents, and the like. 



69 

5. All persons actively concerned with the war such as Higher Officials, 
Diplomatists, Couriers, and the like, as also all those persons whose 
freedom can be a danger to the army of the other State, for example, 
Journalists of hostile opinions, prominent and influential leaders of 
Parties, Clergy who excite the people, and such like. 

6. The mass of the population of a province or a district if they rise in 
defence of their country. 

The points of view regarding the treanment of prisoners of war may be 
summarized in the following rules: 

Prisoners of war are subject to the laws of the State which has captured 
them. 

The relation of the prisoners of war to their own former superiors ceases 
during their captivity; a captured officer's servant steps into the position of a 
private servant. Captured officers are never the superiors of soldiers of the 
State which has captured them; on the contrary, they are under the orders of 
such of the latter as are entrusted with their custody. 

The prisoners of war have, in the places in which they are quartered, to 
submit to such restrictions of their liberty as are necessary for their safe 
keeping. They have strictly to comply with the obligation imposed upon 
them, not to move beyond a certain indicated boundary. 

These measures for their safe keeping are not to be exceeded; in particular, 
penal confinement, fetters, and unnecessary restrictions of freedom are only 
to be resorted to if particular reasons exist to justify or necessitate them. 

The concentration camps in which prisoners of war are quartered must be 
as healthy, clean, and decent as possible; they should not be prisons or convict 
establishments. 

It is true that the French captives were transported by the Russians to 
Siberia as malefactors in the years 1812 and 1813. This was a measure which 
was not illegal according to the older practice of v/ar, but it is no longer in 
accordance with the legal conscience of today. Similarly the methods which 
were adopted during the Civil War in North America in a prison in the 
Southern States, against prisoners of war of the Union Forces, whereby the 
men were kept without air and nourishment and thus badly treated, were also 
against the practice of the law of war. 

Freedom of movement within these concentration camps or within the 
whole locality may be permitted if there are no special reasons against it. But 
obviously prisoners of war are subject to the existing, or to the appointed 
rules of the establishment or garrison. 

Prisoners of war can be put to moderate work proportionate to their 
position in life; work is a safeguard against excesses. Also on grounds of 
health this is desirable. But these tasks should not be prejudicial to health nor 
in any way dishonourable or such as contribute directly or indirectly to the 
military operations against the Fatherland of the captives. Work for the 
State is, according to The Hague Regulations, to be paid at the rates payable 
to members of the army of the State itself. 

Should the work be done on account of other public authorities or of private 



70 

persons, then the conditions will be fixed by agreement with the military 
authorities. The wages of the prisoners of war must be expended in the 
improvement of their condition, and anything that remains should be paid 
over to them after deducting the cost of their maintanance when they are set 
free. Voluntary work in order to earn extra wages is to be allowed, if there 
are no particular reasons against it. Insurrection, insubordination, misuse of 
the freedom granted, will of course justify severer confinement in each case, 
also punishment, and so will crimes and misdemeanours. 

Attempts at escape on the part of individuals who have not pledged their 
word of honour might be regarded as the expression of a natural impulse for 
liberty, and not as a crime. They are therefore to be punished by restrictions 
of the privileges granted and a sharper supervision but not with death. But 
the latter punishment will follow of course in the case of plots to escape, if only 
because of the danger of them. In case of a breach of a man's parole the 
punishment of death may reasonably be incurred. In some circumstances, if 
necessity and the behavior of the prisoners compel it, one is justified in taking 
measures the effect of which is to involve the innocent with the guilty. 

The food of the prisoners must be sufficient and suitable to their rank, yet 
they will have to be content with the customary food of the country; luxuries 
which the prisoners wish to get at their own expense are to be permitted if 
reasons of discipline do not forbid. 

Correspondence with one's own home is to be permitted, likewise visits and 
intercourse, but these of course must be watched. 

The prisoners of war remain in possession of their private property with 
the exception of arms, horses, and documents of a military purport. If for 
definite reasons any objects are taken away from them, then these must be 
kept in suitable places and restored to them at the end of their captivity. 

Article 14 of The Hague Regulations prescribes that on the outbreak of 
hostilities there shall be established in each of the belligerent States and in a 
given case in neutral States, which have received into their territory any of 
the combatants, an information bureau for prisoners of war. Its duty will be 
to answer all inquiries concerning such prisoners and to receive the necessary 
particulars from the services concerned in order to be able to keep a personal 
entry for every prisoner. The information bureau must always be kept well 
posted about everything which concerns a prisoner of war. Also this in- 
formation bureau must collect and assign to the legitimate persons all 
personal objects, valuables, letters, and the like, which are found on the field 
of battle or have been left behind by dead prisoners of war in hospitals or 
field-hospitals. The information bureau enjoys freedom from postage, as do 
generally all postal dispatches sent to or by prisoners of war. Charitable gifts 
for prisoners of war must be free of customs duty and also of freight charges 
on the public railways. 

The prisoners of war have, in the event of their being wounded or sick, a 
claim to medical assistance and case as understood by the Geneva Con- 
vention, so far as is possible, to spiritual ministrations also. 



71 

These rules may be shortly summarized as follows: 

Prisoners of war are subject to the laws of the country in which they find 
themselves, particularly the rules in force in the army of the local State; they 
are to be treated like one's own soldiers, neither worse nor better. 

The following considerations hold good as regard the imposition of a death 
penalty in the case of prisoners; they can be put to death: 

1 . In case they commit offences or are guilty of practices which are punish- 
able by death by civil or military laws. 

2. In case of insubordination, attempts at escape, etc. , deadly weapons can 
be employed. 

3. In case of overwhelming necessity, as reprisals, either against similar 
measures, or against other irregularities on the part of the management 
of the enemy's army. 

4. In case of overwhelming necessity, when other means of precaution do 
not exist and the existence of the prisoners becomes a danger to one's 
own existence. 

As regards the admissibility of reprisals, it is to be remarked that these are 
objected to by numerous teachers of international law on grounds of 
humanity. To make this a matter of principle, and apply it to every case 
exhibits, however, "a misconception due to intelligible but exaggerated and 
unjustifiable feelings of humanity, of the significance, the seriousness and the 
right of war. It must not be overlooked that here also the necessity of war, 
and the safety of the State are the first consideration, and not regard for the 
unconditional freedom of prisoners from molestation." 

That prisoners should only be killed in the event of extreme necessity, and 
that only the duty of self-preservation and the security of one's own State can 
justify a proceeding of this kind is to-day universally admitted. But that these 
considerations have not always been decisive is proved by the shooting of 
2,000 Arabs at Jaffa in 1799 by Napoleon; of the prisoners in the rising of La 
Vendee; in the Carlist War; in Mexico, and in the American War of Secession, 
where it was generally a case of deliverance from burdensome supervision 
and the difficulties of maintenance; whereas peoples of a higher morality such 
as the Boers in our own days, finding themselves in a similar position, have 
preferred to let their prisoners go. For the rest, calamities such as might lead 
to the shooting of prisoners are scarcely likely to happen under the excellent 
conditions of transport in our own time and the correspondingly small 
difficulty of feeding them — in a European campaign. 

The captivity of war comes to an end: 

1. By force of circumstances which de facto determine it, for example, suc- 
cessful escape, cessation of the war, or death. 

2. By becoming the subject of the enemy's state. 

3. By release, whether conditional or unconditional, unilateral or re- 
ciprocal. 

4. By Exchange. 

As to 1. With the cessation of the war every reason for the captivity ceases, 
provided there exist no special grounds for another view. It is on that account 



72 

that care should be taken to discharge prisoners immediately. There remain 
only prisoners sentenced to punishment or awaiting trial, i.e., until the 
expiation of their sentence or the end of their trials as the case may be. 

As to 2. This pre-supposes the readiness of the State to accept the prisoner 
as a subject. 

As to 3. A man released under certain conditions has to fulfil them without 
question. If he does not do this, and again falls into the hands of his enemy, 
then he must expect to be dealt with by military law, and indeed according to 
circumstances with the punishment of death. A conditional release cannot be 
imposed on the captive; still less is there any obligation upon the state to 
discharge a prisoner on conditions — for example, on his parole. The release 
depends entirely on the discretion of the State, as does also the determination 
of its limits and the persons to whom it shall apply. 

The release of whole detachments on their parole is not usual. It is rather to 
be regarded as an arrangement with each particular individual. 

Arrangements of this kind, every one of which is as a rule made a 
conditional discharge, must be very precisely formulated and the wording of 
them most carefully scrutinized. In particular it must be precisely expressed 
whether the person released is only bound no longer to fight directly with 
arms against the State which releases him, in the present war, whether he is 
justified in rendering services to his own country in other positions or in the 
colonies, etc., or whether all and every kind of service is forbidden him. 

The question whether the parole given by an officer or a soldier is 
recognized as binding or not by his own State depends on whether the 
legislation or even the military instructions permit or forbid the giving of 
one's parole. In the first case his own State must not command him to do 
services the performance of which he has pledged himself not to undertake. 
But personally the man released on parole is under all circumstances bound to 
observe it. He destroys his honour if he breaks his word, and is liable to 
punishment if recaptured, even though he has been hindered by his own State 
from keeping it. According to The Hague Regulations a Government can 
demand no services which are in conflict with a man's parole. 

As to 4. The exchange of prisoners in a single case can take place between 
two belligerents without its being necessary in every case to make cir- 
cumstantial agreements. As regards the scope of the exchange and the forms 
in which it is to be completed the Commanding Officers on both sides alone 
decide. Usually the exchange is man for man, in which case the different 
categories of military persons are taken into account and certain ratios 
established as to what constitutes equivalents. 

Transport of Prisoners. — Since no Army makes prisoners in order to let 
them escape again afterwards, measures must be taken for their transport in 
order to prevent attempts at escape. If one recalls that in the year 1870-71, no 
fewer than 11,160 officers and 333,885 men were brought from France to 
Germany, and as a result many thousands often had to be guarded by a 
proportionately small company, one must admit that in such a position only 
the most zealous energy and ruthless employment of all the means at one's 



73 

disposal can avail, and although it is opposed to military sentiment to use 
weapons against the defenceless, none the less in such a case one has no other 
choice. The captive who seeks to free himself by flight does so at his peril and 
can complain of no violence which the custody of prisoners directs in order to 
prevent behaviour of that kind. Apart from these apparently harsh measures 
against attempt at escape, the transport authorities must do everything they 
can to alleviate the lot of the sick and wounded prisoners, in particular they 
are to protect them against insults and ill-treatment from an excited mob. 



74 

DOCUMENT NO. 32 

GENEVA CONVENTION FOR THE AMELIORATION OF THE CON- 
DITION OF THE WOUNDED OF THE ARMIES IN THE FIELD 

(6 July 1906) 

SOURCES 

35 Stat. 1885 

1 Bevans 516 
99 BFSP 968 

1 AJIL Supp. 201 

NOTE 
This was the second of the series of humanitarian conventions drafted in 
Geneva and known as the "Red Cross" Conventions. It superseded the 1864 
Convention (DOCUMENT NO. 24) and was itself superseded by the 1929 
Convention (DOCUMENT NO. 48) and then by the 1949 Convention 
(DOCUMENT NO. 106). 

EXTRACTS 
Article 1. 

Officers, soldiers, and other persons officially attached to armies, who are 
sick or wounded, shall be respected and care for, without distinction of 
nationality, by the belligerent in whose power they are. 

A belligerent, however, when compelled to leave his wounded in the hands 
of his adversary, shall leave with them, so far as military conditions permit, a 
portion of the personnel and material of his sanitary service to assist in caring 
for them. 

Art. 2. 

Subject to the care that must be taken of them under the preceding article, 
the sick and wounded of an army who fall into the power of the other 
belligerent become prisoners of war, and the general rules of international 
law in respect to prisoners become applicable to them. 

The belligerents remain free, however, to mutually agree upon such 
clauses, by way of exception or favor, in relation to the wounded or sick as 
they may deem proper. They shall especially have authority to agree: 

1. To mutually return the sick and wounded left on the field of battle after 
an engagement. 

2. To send back to their own country the sick and wounded who have 
recovered, or who are in a condition to be transported and whom they do not 
desire to retain as prisoners. 

3. To send the sick and wounded of the enemy to a neutral state, with the 
consent of the latter and on condition that it shall charge itself with their 
internment until the close of hostilities. 



75 

Art. 9. 

The personnel charged exclusively with the removal, transportation, and 
treatment of the sick and wounded, as well as with the administration of 
sanitary formations and establishments, and the chaplains attached to 
armies, shall be respected and protected under all circumstances. If they fall 
into the hands of the enemy they shall not be considered as prisoners of war. 

These provisions apply to sanitary formations and establishments in the 
case provided for in section 2 of article 8. 

Art. 10. 

The personnel of volunteer aid societies, duly recognized and authorized by 
their own governments, who are employed in the sanitary formations and 
establishments of armies, are assimilated to the personnel contemplated in 
the preceding article, upon condition that the said personnel shall be subject 
to military laws and regulations. 

Each state shall make known to the other, either in time of peace or at the 
opening, or during the progress of hostilities, and in any case before actual 
employment, the names of the societies which it has authorized to render 
assistance, under its responsibility, in the official sanitary service of its 
armies. 

Art. 11. 

A recognized society of a neutral state can only lend the services of its 
sanitary personnel and formations to a belligerent with the prior consent of 
its own government and the authority of such belligerent. The belligerent 
who has accepted such assistance is required to notify the enemy before 
making any use thereof. 

Art. 12. 

Persons described in articles 9, 10, and 11 will continue in the exercise of 
their functions, under the direction of the enemy, after they have fallen into 
his power. 

When their assistance is no longer indispensable they will be sent back to 
their army or country, within such period and by such route as may accord 
with militaty necessity. They will carry with them such effects, instruments, 
arms, and horses as are their private property. 

Art. 28. 

In the event of their military penal laws being insufficient, the signatory 
governments also engage to take, or to recommend to their legislatures, the 
necessary measures to repress, in time of war, individual acts of robbery and 
ill treatment of the sick and wounded of the armies, as well as to punish, as 
usurpations of military insignia, the wrongful use of the flag and brassard of 
the Red Cross by military persons or private individuals not protected by the 
present convention. 

They will communicate to each other through the Swiss Federal Council 
the measures taken with a view to such repression, not later than five years 
from the ratification of the present convention. 



76 

DOCUMENT NO. 33 

1907 HAGUE CONVENTION IV WITH RESPECT TO THE LAWS AND 
CUSTOMS OF WAR ON LAND (WITH ANNEXED REGULATIONS) 

(18 October 1907) 

SOURCES 

36 Stat. 2277 

1 Bevans 631 
100 BFSP 338 

2 AJIL Supp. 90 

NOTE 
The First (1899) Hague Conference had been called by the Tsar of Russia 
(DOCUMENT NO. 28). It was expected that a second conference would be 
convened shortly thereafter but this did not occur and then the Tsar found 
himself involved in the Russo-Japanese War (1904-1905). At the urging of the 
Interparliamentary Union, in 1904 the United States began sounding out the 
Parties to the 1899 Conventions concerning the possibility of and the desire 
for a second conference. However, before any affirmative action had been 
taken with respect to the favorable responses received, the Russo-Japanese 
War ended, the Tsar was permitted to resume the position of initiator, and he 
proposed a new conference to meet at The Hague in June 1907. When it 
adjourned on 18 October 1907, it had drafted 13 separate conventions and a 
declaration. Among the conventions was the 1907 Hague Convention IV with 
its Annexed Regulations setting forth the laws and customs of war on land. 
These were a not very radical revision of their predecessor, the 1899 Hague 
Convention II with its Annexed Regulations (DOCUMENT NO. 28). They 
represented the applicable law of war on land in both of the World Wars of the 
first half of the 20th century. 

EXTRACTS 

PREAMBLE: 

Until a more complete code of the laws of war has been issued, the High 
Contracting Parties deem it expedient to declare that, in cases not included in 
the Regulations adopted by them, the inhabitants and the belligerents 
remain under the protection and the rule of the principles of the law of 
nations, as they result from the usages established among civilized peoples, 
from the laws of humanity, and the dictates of the public conscience. 

CONVENTION: 

Article 1. 
The Contracting Powers shall issue instructions to their armed land forces 
which shall be in conformity with the Regulations respecting the Laws and 
Customs of War on Land, annexed to the present Convention. 



77 

Article 3. 
A belligerent party which violates the provisions of the said Regulations 
shall, if the case demands, be liable to pay compensation. It shall be 
responsible for all acts committed by persons forming part of its armed 
forces. 

REGULATIONS: 

Regulations respecting the laws and customs of war on land. 

Section I. — On Belligerents. 

Chapter I. — The Qualifications of Belligerents. 

Article 1. 

The laws, rights, and duties of war apply not only to armies, but also to 

militia and volunteer corps fulfilling the following conditions: — 

1. To be commanded by a person responsible for his subordinates; 

2. To have a fixed distinctive emblem recognizable at a distance; 

3. To carry arms openly; and 

4. To conduct their operations in accordance with the laws and customs of 
war. 

In countries where militia or volunteer corps constitute the army, or form 
part of it, they are included under the denomination "army." 

Article 2. 
The inhabitants of a territory which has not been occupied, who, on the 
approach of the enemy, spontaneously take up arms to resist the invading 
troops without having had the time to organize themselves in accordance with 
Article 1, shall be regarded as belligerents if they carry arms openly and if 
they respect the laws and customs of war. 

Article 3. 
The armed forces of the belligerent parties may consist of combatants and 
noncombatants. In the case of capture by the enemy, both have a right to be 
treated as prisoners of war. 

Chapter II. — Prisoners of War. 
Article 4. 
Prisoners of war are in the power of the hostile Government, but not of the 
individuals or corps who capture them. 
They must be humanely treated. 

All their personal belongings, except arms, horses, and military papers, 
remain their property. 

Article 5. 
Prisoners of war may be interned in a town, fortress, camp, or other place, 
and bound not to go beyond certain fixed limits; but they cannot be confined 
except as an indispensable measure of safety and only while the cir- 
cumstances which necessitate the measure continue to exist. 

Article 6. 
The State may utilize the labour of prisoners of war according to their rank 
and aptitude, officers excepted. The tasks shall not be excessive and shall 
have no connection with the operations of the war. 



78 

Prisoners may be authorized to work for the public service, for private 
persons, or on their own account. 

Work done for the State is paid at the rates in force for work of a similar 
kind done by soldiers of the national army, or, if there are none in force, at a 
rate according to the work executed. 

When the work is for other branches of the public service or for private 
persons the conditions are settled in agreement with the military authorities. 

The wages of the prisoners shall go towards improving their position, and 
the balance shall be paid them on their release, after deducting the cost of 
their maintenance. 

Article 7. 

The Government into whose hands prisoners of war have fallen is charged 
with their maintenance. 

In the absence of a special agreement between the belligerents, prisoners 
of war shall be treated as regards board, lodging, and clothing on the same 
footing as the troops of the Government who captured them. 

Article 8. 

Prisoners of war shall be subject to the laws, regulations, and orders in 
force in the army of the State in whose power they are. Any act of in- 
subordination justifies the adoption towards them of such measures of 
severity as may be considered necessary. 

Escaped prisoners who are retaken before being able to rejoin their own 
army or before leaving the territory occupied by the army which captured 
them are liable to disciplinary punishment. 

Prisoners who, after succeeding in escaping, are again taken prisoners, are 
not liable to any punishment on account of the previous flight. 

Article 9. 

Every prisoner of war is bound to give, if he is questioned on the subject, 
his true name and rank, and if he infringes this rule, he is liable to have the 
advantages given to prisoners of his class curtailed. 

Article 10. 

Prisoners of war may be set at liberty on parole if the laws of their country 
allow, and, in such cases, they are bound, on their personal honour, 
scrupulously to fulfil, both towards their own Government and the 
Government by whom they were made prisoners, the engagements they have 
contracted. 

In such cases their own Government is bound neither to require of nor 
accept from them any service incompatible with the parole given. 

Article 11. 

A prisoner of war can not be compelled to accept his liberty on parole; 
similarly the hostile Government is not obliged to accede to the request of the 
prisoner to be set at liberty on parole. 

Article 12. 

Prisoners of war liberated on parole and recaptured bearing arms against 
the Government to whom they had pledged their honour, or against the allies 
of that Government, forfeit their right to be treated as prisoners of war, and 
can be brought before the Courts. 



79 



Article 13. 

Individuals who follow an army without directly belonging to it, such as 
newspaper correspondents and reporters, sutlers and contractors, who fall 
into the enemy's hands and whom the latter thinks expedient to detain, are 
entitled to be treated as prisoners of war, provided they are in possession of a 
certificate from the military authorities of the army which they were 
accompanying. 

Article 14. 

An inquiry office for prisoners of war is instituted on the commencement of 
hostilities in each of the belligerent States, and, when necessary, in neutral 
countries which have received belligerents in their territory. It is the 
function of this office to reply to all inquiries about the prisoners. It receives 
from the various services concerned full information respecting internments 
and transfers, releases on parole, exchanges, escapes, admissions into 
hospital, deaths, as well as other information necessary to enable it to make 
out and keep up to date an individual return for each prisoner of war. The 
office must state in this return the regimental number, name and surname, 
age, place of origin, rank, unit, wounds, date and place of capture, 
internment, wounding, and death, as well as any observations of a special 
character. The individual return shall be sent to the Government of the other 
belligerent after the conclusion of peace. 

It is likewise the function of the inquiry office to receive and collect all 
objects of personal use, valuables, letters, &c, found on the field of battle or 
left by prisoners who have been released on parole, or exchanged, or who 
have escaped, or died in hospitals or ambulances, and to forward them to 
those concerned. 

Article 15. 

Relief societies for prisoners of war, which are properly constituted in 
accordance with the laws of their country and with the object of serving as the 
channel for charitable effort shall receive from the belligerents, for 
themselves and their duly accredited agents every facility for the efficient 
performance of their humane task within the bounds imposed by military 
necessities and administrative regulations. Agents of these societies may be 
admitted to the places of internment for the purpose of distributing relief, as 
also to the halting places of repatriated prisoners, if furnished with a personal 
permit by the military authorities, and on giving an undertaking in writing to 
comply with all measures of order and police which the latter may issue. 

Article 16. 
Inquiry offices enjoy the privilege of free postage. Letters, money 
orders, and valuables, as well as parcels by post, intended for prisoners of 
war, or dispatched by them, shall be exempt from all postal duties in the 
countries of origin and destination, as well as in the countries they pass 
through. 

Presents and relief in kind for prisoners of war shall be admitted free of all 
import or other duties, as well as of payments for carriage by the State 
railways. 



80 

Article 17. 
Officers taken prisoners shall receive the same rate of pay as officers of 
corresponding rank in the country where they are detained, the amount to be 
ultimately refunded by their own Government. 

Article 18. 
Prisoners of war shall enjoy complete liberty in the exercise of their 
religion, including attendance at the services of whatever Church they may 
belong to, on the sole condition that they comply with the measures of order 
and police issued by the military authorities. 

Article 19. 
The wills of prisoners of war are received or drawn up in the same way as 
for soldiers of the national army. 

The same rules shall be observed regarding death certificates as well as for 
the burial of prisoners of war, due regard being paid to their grade and rank. 

Article 20. 
After the conclusion of peace, the repatriation of prisoners of war shall be 
carried out as quickly as possible. 

Chapter III. — The Sick and Wounded. 
Article 21. 
The obligations of belligerents with regard to the sick and wounded are 
governed by the Geneva Convention. 



81 
DOCUMENT NO. 34 

1907 HAGUE CONVENTION V RESPECTING THE RIGHTS AND 
DUTIES OF NEUTRAL POWERS AND PERSONS IN CASE OF WAR 

ON LAND 

(18 October 1907) 

SOURCES 
36 Stat. 2310 

1 Bevans 654 
100 BFSP 359 
2AJILSupp. 117 

NOTE 
This was the first international convention to deal generally with the 
subject of neutrality. Although it was not ratified by several of the major 
Powers, including Great Britain, the provisions quoted below were 
apparently not among those found objectionable as they have been applied in 
two World Wars and there appears little doubt that, at the very least, they 
now represent customary international law. During both World Wars 
Switzerland and, to a lesser extent, Sweden had frequent occasion to apply 
many of the provisions of this Convention relating to prisoners of war. 

EXTRACTS 
Article 11. 

A neutral Power which receives on its territory troops belonging to the 
belligerent armies shall intern them, as fas as possible, at a distance from the 
theatre of war. 

It may keep them in camps and even confine them in fortresses or in places 
set apart for this purpose. 

It shall decide whether officers can be left at liberty on giving their parole 
not to leave the neutral territory without permission. 

Article 12. 

In the absence of a special Convention to the contrary, the neutral Power 
shall supply the interned with food, clothing, and relief required by 
humanity. 

At the conclusion of peace the expenses caused by the internment shall be 
made good. 

Article 13. 

A neutral Power which receives escaped prisoners of war shall leave them 
at liberty. If it allows them to remain in its territory it may assign them a 
place of residence. 

The same rule applies to prisoners of war brought by troops taking refuge 
in the territory of a neutral Power. 



82 



Article 14. 

A neutral Power may authorize the passage into its territory of the sick and 
wounded belonging to the belligerent armies, on condition that the trains 
bringing them shall carry neither personnel or war material. In such a case 
the neutral Power is bound to take whatever measures of safety and control 
are necessary for the purpose. 

The sick or wounded brought under these conditions into neutral territory 
by one of the belligerents, and belonging to the hostile party, must be 
guarded by the neutral Power so as to ensure their not taking part again in 
the military operations. The same duty shall devolve on the neutral State 
with regard to wounded or sick of the other army who may be committed to its 
care. 

Article 15. 

The Geneva Convention applies to sick and wounded interned in neutral 
territory. 






83 



DOCUMENT NO. 35 



1907 HAGUE CONVENTION X FOR THE ADAPTATION TO MARI- 
TIME WARFARE OF THE PRINCIPLES OF THE GENEVA 
CONVENTION [OF 6 JULY 1906] 
(18 October 1907) 

SOURCES 
36 Stat. 2371 

1 Bevans 694 
100BFSP415 

2 AJIL Supp. 153 

NOTE 

The first attempt, made in 1868, to adapt to maritime warfare the rules 
applicable to the wounded and sick of armies in the field had probably been 
unsuccessful (DOCUMENT NO. 26). The second attempt, the 1899 Hague 
Convention III (DOCUMENT NO. 29), had received wide acceptance. So, 
too, did the present convention. No attempt was made to update this 
convention in 1929, when its land warfare counterpart was redrafted 
(DOCUMENT NO. 48), so it remained in effect until superseded by the 1949 
Geneva Second Convention (DOCUMENT NO. 107). 

EXTRACTS 
Article 10. 

The religious, medical, and hospital staff of any captured ship is inviolable, 
and its members cannot be made prisoners of war. On leaving the ship they 
take away with them the objects and surgical instruments which are their 
own private property. 

This staff shall continue to discharge its duties while necessary, and can 
afterwards leave, when the Commander-in-chief considers it possible. 

The belligerents must guarantee to the said staff, when it has fallen into 
their hands, the same allowances and pay which are given to the staff of 
corresponding rank in their own navy. 

Article 11. 

Sailors and soldiers on board, when sick or wounded, as well as other 
persons officially attached to fleets or armies, whatever their nationality, 
shall be respected and tended by the captors. 

Article 12. 

Any war-ship belonging to a belligerent may demand that sick, wounded, 
or shipwrecked men on board military hospital-ships, hospital-ships 
belonging to relief societies or to private individuals, merchant-ships, yachts, 
or boats, whatever the nationality of these vessels, should be handed over. 



84 

Article 13. 
If sick, wounded, or shipwrecked persons are taken on board a neutral 
war-ship, every possible precaution must be taken that they do not again take 
part in the operations of the war. 

Article 14. 
The shipwrecked, wounded, or sick of one of the belligerents who fall into 
the power of the other belligerents are prisoners of war. The captor must 
decide, according to circumstances, whether to keep them, send them to a 
port of his own country, to a neutral port, or even to an enemy port. In this 
last case, prisoners thus repatriated cannot serve again while the war lasts. 

Article 15. 
The shipwrecked, sick, or wounded, who are landed at a neutral port with 
the consent of the local authorities, must, unless an arrangement is made to 
the contrary between the neutral State and the belligerent States, be 
guarded by the neutral State so as to prevent them again taking part in the 
operations of the war. 

The expenses of tending them in hospital and interning them shall be borne 
by the State to which the shipwrecked, sick, or wounded persons belong. 

Article 16. 
After every engagement, the two belligerents, so fas as military interests 
permit, shall take steps to look for the shipwrecked, sick, and wounded, and 
to protect them, as well as the dead, against pillage and ill treatment. 

They shall see that the burial, whether by land or sea, or cremation of the 
dead shall be preceded by a careful examination of the corpse. 

Article 17. 
Each belligerent shall send, as early as possible, to the authorities of their 
country, navy, or army the military marks or documents of identity found on 
the dead and the description of the sick and wounded picked up by him. 

The belligerents shall keep each other informed as to internments and 
transfers as well as to the admissions into hospital and deaths which have 
occurred among the sick and wounded in their hands. They shall collect all the 
objects of personal use, valuables, letters, etc., which are found in the 
captured ships, or which have been left by the sick or wounded who died in 
hospital, in order to have them forwarded to the persons concerned by the 
authorities of their own country. 

Article 21. 
The Signatory Powers likewise undertake to enact or to propose to their 
Legislatures, if their criminal laws are inadequate, the measures necessary 
for checking in time of war individual acts of pillage and ill-treatment in 
respect to the sick and wounded in the fleet, as well as for punishing, as an 
unjustifiable adoption of naval or military marks, the unauthorized use of the 
distinctive marks mentioned in Article 5 by vessels not protected by the 
present Convention. 



85 



DOCUMENT NO. 36 



1907 HAGUE CONVENTION XI RELATIVE TO CERTAIN RESTRIC- 
TIONS WITH REGARD TO THE EXERCISE OF THE RIGHT OF 

CAPTURE IN NAVAL WAR 

(18 October 1907) 

SOURCES 
36 Stat. 2396 
lBevans711 
100 BFSP 422 
2 AJIL Supp. 167 

NOTE 
Even though it does not specifically so provide, and probably was not so 
intended, this convention actually had the effect of codifying a rule of 
customary international law under which members of the civilian crews of 
captured enemy merchant vessels, if enemy nationals, were detained by their 
captors but were denied prisoner-of-war status and protections. It was only 
as a result of the provisions of Article 4A(5) of the 1949 Geneva Prisoner-of- 
War Convention (DOCUMENT NO. 108) that the right of these individuals 
to prisoner-of-war status, as a minimum, was established. 

EXTRACTS 
Article 5. 
When an enemy merchant-ship is captured by a belligerent, such of its crew 
as are nationals of a neutral State are not made prisoners of war. 

The same rule in the case of the captain and officers likewise nationals of a 
neutral State, if they promise formally in writing not to serve on an enemy 
ship while the war lasts. 

Article 6. 
The captain, officers, and members of the crew, when nationals of the 
enemy State, are not made prisoners of war, on condition that they make a 
formal promise in writing, not to undertake, while hostilities last, any service 
connected with the operations of the war. 

Article 7. 
The names of the persons retaining their liberty under the conditions laid 
down in Article 5, paragraph 2, and in Article 6, are notified by the belligerent 
captor to the other belligerent. The latter is forbidden knowingly to employ 
the said person. 

Article 8. 
The provisions of the three preceding Articles do not apply to ships taking 
part in the hostilities. 



86 

DOCUMENT NO. 37 

AGREEMENT BETWEEN GREAT BRITAIN AND GERMANY 
CONCERNING COMBATANT AND CIVILIAN PRISONERS OF WAR 

(The Hague, 2 July 1917) 

SOURCES 

111BFSP257 

Pari. Papers, "Misc., No. 12 (1917)" 

NOTE 
During World War I (1914-1918) the provisions of the 1907 Hague IV 
Regulations (DOCUMENT NO. 33) with respect to prisoners of war 
repeatedly proved inadequate to answer the many problems which arose in 
that area. Accordingly, the various Parties to that conflict found it necessary 
and appropriate to enter into a great number of bilateral and multilateral 
agreements containing ad hoc solutions to those problems. (This was a 
phenomenon which was not repeated during World War II (1939-1945) 
despite the many obvious inadequacies of the 1929 Geneva Prisoner-of-War 
Convention (DOCUMENT NO. 49).) The present agreement is one of them. 
Two other representative agreements, containing typical solutions to the 
great majority of the prisoner-of-war problems which arose during World 
War I are included herein. One of them (DOCUMENT NO. 40) supplements 
the present agreement and the other is between Germany and the United 
States (DOCUMENT NO. 42). Other representative agreements, to be 
found in French only, were entered into by Germany, Austria-Hungary, 
Rumania, Russia, and Turkey at Copenhagen in November 1917 (Archives of 
the Ministry of Foreign Affairs, Copenhagen, Denmark) and by France and 
Germany in April 1918 (111 BFSP 713). The rather anomalous term "civilian 
prisoners of war" was used in a number of these agreements, including the 
present one, because of the necessity to provide a modus operandi for dealing 
with civilian internees who, at the time, were not the subjects of any 
humanitarian convention. This problem is now dealt with in the 1949 Civilians 
(Fourth) Convention (75 UNTS 287; 6 UST 3516; 157 BFSP 355; 50 AJIL 
Supp. 724). 

EXTRACTS 
The British and German Governments, with respect to combatant and 
civilian prisoners of war, have agreed as follows: — 

I. — Resumption of Repatriation under the existing Agreements. 
Paragraph 1. — Repatriation of combatant and civilian prisoners of war 
under the existing Agreements shall be resumed as soon as practicable, and 
to that end the Netherlands Government has been requested by both parties 
to arrange for and carry through such repatriation in a manner agreeable to 
the British and German Governments. 



87 

II. — Repatriation or Internment in Neutral Countries of Sick and 
Wounded Combatant Prisoners of War. 

Paragraph 2. Repatriation of Tuberculous Prisoners. — All tuberculous 
prisoners interned in Switzerland who are practically cured shall be 
repatriated after examination, as prescribed by paragraph 8. 

Paragraph 3. New Schedules of Disabilities. — New and more lenient 
schedules of disabilities shall be drawm up for guidance in choosing combatant 
prisoners of w T ar — 

(a. ) For repatriation direct or from a neutral country. 

(b.) For internment in a neutral country. 

Pending the settlement of these new schedules, the schedules lately agreed 
upon between the French, German, and Swiss military authorities shall be 
operative for the purpose aforesaid. 

Paragraph 4. Barbed-wire Disease. — Prisoners of w r ar who have been at 
least eighteen months in captivity, and who are suffering from "barbed-wire 
disease," shall for the future be recognised as suitable for internment in 
Switzerland or other neutral country. If after being interned there for three 
months a considerable improvement in health is not observable, the disease 
will be treated as serious and the prisoner entitled to be considered for 
repatriation, as provided in paragraph 8 hereof. 

Paragraph 5. "Complementary Internment" according to the New 
Schedules of Disabilities. — (A.) With consent of the Swiss Government, 
there shall be effectuated, in August and September of this year, a 
complementary internment in Switzerland of prisoners who were in captivity 
prior to the 1st November, 1916. 

The examination for this purpose shall be conducted by two Commissions, 
each composed of three Swiss doctors and three doctors of the captor State. 
In case the Commission is equally divided in opinion, the Senior Swiss 
medical officer shall have the casting vote. The Commissions shall meet on the 
1st August of this year, and shall base their decisions in each case presented 
to them upon the new schedules of disabilities above referred to. 

The classes of prisoners whose cases are to be decided upon by these 
Commissions are: — 

(a. ) Prisoners of war, who have already been selected as fit for internment 
in a neutral country by the travelling medical Commission, but whose cases 
have been adjourned for future considerations. 

(b .) Prisoners of whom it has become known that they have been ill for 
some time, but have, for unknown reasons, not been recognised as being fit 
for internment. 

(c.) Prisoners who, by mistake or inadvertence, have not had their cases 
brought before the travelling Commission, or who have been unable to 
appear before it. 

(B.) None of these prisoners shall be finally rejected by the Commission 
above mentioned at the first examination. All those not selected for 
repatriation or internment shall be transferred to an observation camp, and 



88 

their cases shall be considered again by the Commission after an interval of 
four weeks. When the decision of the Commission is unfavourable to the 
prisoner, the reasons shall be explicitly given. 

(C.) All prisoners who have been designated by the complementary 
examination as being fit for internment shall be transferred to Switzerland as 
soon as practicable. 

Paragraph 6. Repatriation of Interned Prisoners of War. — In order to 
gain room for the complementary internment, the British prisoners interned 
by the German Government and the German prisoners interned by the 
British Government, who need a long time for their complete recovery, shall 
be repatriated from Switzerland in August and September next, according to 
the Agreement for the reciprocal exchange of the severely wounded and 
seriously ill. The decision is a matter for the Swiss doctors, and shall be 
binding on both sides, unless the nationals of one side designated for 
repatriation shall exceed by 20 per cent or more the nationals of the other. In 
that case, the method of examination shall be as at present (see paragraph 8). 

Paragraph 7. Further Examination according to the New Schedules. — 

(A.) As soon as possible after the examination mentioned in paragraph 5 has 
been concluded, Commissions, composed of two medical officers of a neutral 
State and three medical officers of the captor State, shall proceed to examine 
the prisoners who have been recommended for internment by the camp 
medical officers of the captor State after having made a thorough examination 
according to the new schedule of disabilities for internment. 

(B.) The same procedure shall be adopted in subsequent examinations of 
invalid prisoners of war for internment in a neutral country. These 
examinations will take place at intervals of three or four months, as hitherto 
has been customary. 

(C.) Prisoners of war passed for internment shall be interned as soon as 
practicable. 

Paragraph 8. Examination for Repatriation from a Neutral Country. — 
The examination of invalids for repatriation from a neutral country shall be 
made in accordance with the new schedule of disabilities for repatriation, and 
shall in other respects continue to be conducted on the present system, 
namely, by a Commission composed of two medical officers of the captor State 
and a representative of the Legation of the same State in the country of 
internment. 

Paragraph 9. Direct Repatriation of Prisoners of War. — The selection of 
prisoners of war for direct repatriation shall be made in accordance with the 
new schedule of disabilities for repatriation, but in other respects the 
procedure shall remain as heretofore. 

Paragraph 10. Non-employment of Repatriated Prisoners of War. — 
Prisoners repatriated in pursuance of this chapter shall not be employed on 
any front of military operations or on lines of communication or within 
occupied territory. 



89 

III. — Internment in a Neutral Country of Officers and Non-commissioned 
Officers who have been in Captivity for not less than IX months. 

Paragraph 11. — All officers and non-commissioned officers, irrespective of 
rank or number, and whether under punishment or not, so soon as they have 
been in captivity at least eighteen months, shall, so far as they do not express 
the desire to remain, be interned in Switzerland or other neutral country, 
subject always to the possibility of accommodation being found for them, 
which both Governments will use their best efforts to secure. The order of 
transfer to the neutral country shall be that of priority of capture irrespective 
of nationality. As far as German officers and non-commissioned officers are 
concerned, the agreement contained in this paragraph applies to those only 
who are now or may hereafter be in Great Britain and France. 

IV. — Internment of Invalid Civilians in the Netherlands. 

Paragraph 12. — 1,600 of the German civilians now interned in Great 
Britain, and 400 of the British civilians now interned in Germany, shall be 
interned in the Netherlands. They shall be chosen by the medical authorities 
of the captor State in accordance with the new schedule of disabilities for the 
internment of sick and wounded combatants referred to in Chapter II of this 
Agreement. If on either side the civilians who are found to be qualified under 
that schedule do not reach the requisite number, the deficiency shall be made 
up by adding those who, in the opinion of the medical authorities of the captor 
State, are the next most in need of relief from captivity on medical grounds. 
V. — Allocation of Accommodation for Combatant and Civilian 
Prisoners of War to be Interned in the Netherlands. 

Paragraph 13. — Under the supposition that the Netherlands Gov- 
ernment, as they have offered, will receive for internment in the Netherlands 
16,000 German and British prisoners of war (combatant or interned civilians), 
this accommodation shall be allotted as follows: — 

(a.) To sick and wounded combatants to be interned under Chapter II of 
this Agreement, 7,500 places. 

(b.) To officers and non-commissioned officers to be interned under 
Chapter III of this Agreement, 6,500 places. 

(c.) To invalid civilians to be interned under Chapter IV of this 
Agreement, 2,000 places. 

Both Governments hereby undertake to return promptly to the 
Netherlands any of these persons who may escape therefrom and come within 
their power. 

VI. — Repatriation of Medical Personnel still retained. 

Paragraph 14. — All members of the German medical personnel who are 
still in British hands [in Great Britain or France], and all members of the 
British medical personnel who are still in German hands, shall be released and 
repatriated, as soon as may be, in the transport for exchanges of prisoners of 
war. 



90 

If further evidence that a prisoner belongs to the medical personnel is 
required by the captor State, this shall be given by his name being included in 
a list which will be complied by the Home Government and sent to the captor 
State through the usual diplomatic channel. If the captor State has reasons 
for refusing to recognise the right to repatriation of any person mentioned in 
the lists the captor State shall explicitly set forth these reasons. 

Paragraph 15. — The British Government will permit the German medical 
personnel originally belonging to the German garrison of Tsingtau, and now 
in the United States of America, to return to Germany by sea if they are 
permitted by the Government of the United States to leave that country for 
Germany. 

VII. — Punishments for Attempts to Escape by Combatant 

Prisoners of War. 

Paragraph 16. — (a. ) The punishment for a simple attempt to escape on the 
part of a combatant prisoner of war, even if repeated, shall not exceed 
military confinement for a period of fourteen days. 

The punishment for such an attempt to escape combined with other 
punishable actions consequent upon or incidental to such attempt in respect of 
property, whether in relation to the appropriation or possession thereof, or 
injury thereto, shall not exceed military confinement for a period of two 
months. 

(b.) All combatant prisoners of war who have been in confinement in 
respect of attempts to escape, whether simple or combined with other 
offences as defined above for longer periods than above mentioned, shall at 
once be released. 

(c.) All reprisals taken on British combatant prisoners of war in German 
hands for the offence of attempting to escape, whether simple or combined 
with other offences as defined in sub-paragraph (a), shall be at once cancelled. 

Paragraph 17. — The Agreement contained in the preceding paragraph 
shall become operative at the latest on the 1st August, 1917. 

VIII. — Remission of Punishment Inflicted on Combatant and 
Civilian Prisoners of War. 

Paragraph 18. — The execution of all punishments inflicted on combatant 
and civilian prisoners of war on account of offences and crimes which have 
been committed between the date of capture and the 1st August next will be 
remitted until the conclusion of peace. 

Paragraph 19. — Any prisoner who benefits under this Agreement will be 
exempt from any special restrictions other than those which are applicable to 
all prisoners of war and will be equally eligible with them for all benefits they 
may enjoy, including repatriation and internment in a neutral country. 
IX. — Reprisals against Combatant and Civilian Prisoners of War. 

Paragraph 20. — Reprisals against combatant and civilian prisoners of war 
may only be carried out after at least four week's notice of intention so to do 
has been given. 



91 

The time limit begins with the date on which the Swiss Legation in London 
has been notified of the intended reprisals against German prisoners in 
British hands or the Netherlands Legation in Berlin of those against British 
prisoners in German hands. 

In cases which seem suitable an attempt will be made to eliminate the 
reasons for reprisals by arranging a personal discussion at The Hague before 
threatening the reprisals. 

X. — Speedy Delivery of Parcels. 

Paragraph 21. — Both military administrations will use every endeavour 
to secure the speedy delivery of all parcels addressed to prisoners of war, 
both combatant and civilian, and to avoid all unnecessary censorship. 

XI. — Notification of Capture. 

Paragraph 22. — Both military administrations will immediately repeat 
instructions to all concerned to the following effect: — 

(a.) All captures are to be notified by the captor State to the other State 
with the least possible delay. 

(b. ) Every prisoner captured is to be allowed to communicate at once with 
his family and is to be provided with the means of doing so, and the dispatch of 
his communications is to be facilitated. 

(c .) As soon as practicable after capture every prisoner is to be enabled to 
inform his family of an address at which his family can communicate with him. 

Annex 3. 

The Hague, July 2, 191 7. 

Youthful Prisoners. — General Friedrich declares that subject to 
reciprocity, those British subjects who are youthful and who are captives in 
German hands, shall be separated from the rest of the prisoners of war and 
put in a separate block in one camp by themselves. They shall be kept away 
from all unfavourable influences to which they might be subjected by being 
brought in contact with adult prisoners of war. Their further education and 
instruction shall also be provided for. 

Annex 4. 

The Hague, July 2, 191 7. 

More Speedy Trial of Combatant Prisoners of War. — The British 
delegates having intimated that information has reached His Majesty's 
Government from time to time that the trial of prisoners of war in German 
camps has frequently only taken place after long delay and that the prisoners 
in the meantime been kept in custody, General Freidrich informed the 
delegates that such occurrences were not in any way in order, and he stated 
that so soon as he returned to Berlin he would expressly instruct the different 
commands to take such steps as would prevent the occurrence of similar 
delays in the future. 



92 

Annex 5. 

The Hague, June 28, 191 7. 

Punishments of Prisoners of War, Remission of Punishments. — (1.) The 
British delegates desire to represent to the German delegates the desirability 
of an Agreement being concluded between them on lines approximately as 
closely as possible to that arranged between the French and German 
Governments whereby all sentences inflicted for offences committed prior to 
the 1st September, 1916, were remitted until the conclusion of hostilities. An 
Agreement on precisely similar lines is, however, owing to the limitations of 
disciplinary powers allowable under the British military code, impracticable. 

The British delegates therefore suggest that every combatant prisoner of 
war held by either State, of whatever rank, shall, on a date to be agreed upon 
between the British and German Governments, be released from any form of 
imprisonment, detention, punishment, or restrictions which may have been 
inflicted upon him for any crime or offence whatever committed during his 
internment and prior to the date agreed upon, and that the remainder of his 
punishment shall be remitted from that date. Any prisoner who benefits 
under this Agreement will be exempt from any special restrictions other than 
those which are applicable to all prisoners of war, and will be equally eligible 
with them for all benefits they may enjoy, including repatriation and 
internment in Switzerland. 

It has been a satisfaction to the British delegates to observe the favourable 
reception accorded by the German delegates to this proposal at the meeting of 
the 26th June. The British delegates were moved to make their proposal 
largely by reason of the number of heavy sentences hitherto inflicted on many 
British prisoners in Germany far beyond any imposed for similar purposes in 
England, and the delegates express the hope that they are now things of the 
past. 

(2.) The British delegates assume that all ideas which the German 
delegates may have had that prisoners of war, whether combatant or civilian, 
who attempt to escape, are subjected to additional penalties by reason of 
their falling into the hands of the civil power, has been removed by the 
explanation given on the subject at the meeting of the 26th June. 

The Hague, June SO, 1917. 

The German delegates have heard with interest the declaration of the 
British delegates of the 28th June, from which it appears desirable that an 
understanding should be arrived at on the subject of the remission of the 
punishments of British and German prisoners of war. They entirely agree 
with the view of the British delegates, and have willingly complied as far as 
possible in this direction with their proposals. By the understanding thus 
reached the point seems to be settled in a satisfactory manner. 

A far as concerns the punishment of German prisoners of war who have 
endeavoured to escape, the German delegates have no hesitation, after the 
explanation given by the British delegates at the sitting of the 26th June, in 
confirming that the supposition expressed at the end of the declaration of the 
28th June is correct. 



93 

Annex 6. 

The Hague, July 2, 191 7. 

Parcels. — Various questions were raised relating to the delay which had 
taken place in the delivery of parcels, especially to prisoners in the labour 
camps throughout Germany and in the occupied districts. This delay appears 
to be largely attributable to excessive censorship, some parcels before 
reaching their destination having been censored as often as three times. 

General Friedrich explained that the delays in the delivery of parcels at the 
camps in Germany and the strict censorship which is being exercised on 
parcels was due to the discovery in many cases of articles of sabotage, which 
had been enclosed in parcels addressed to prisoners of war in Germany. 

General Friedrich further stated that the wishes of the British delegates 
had already been met to a certain extent, and the British delegates having 
stated that they saw great objection to such practices and strongly 
deprecated them, General Friedrich suggested that the British Government 
should publish in the British and especially in the neutral press a statement 
that the including of articles of sabotage in the parcels addressed to 
combatant and civilian prisoners of war is deprecated and disapproved by the 
Government as being contrary to the interests of the whole body of prisoners 
of war, General Friedrich stating that he would simultaneously publish a 
corresponding declaration on behalf of the German Government. 

By these means it would be possible to give full satisfaction to the wishes of 
the British delegates. 

In order to give a guarantee for a corresponding action, General Friedrich 
proposes that both Governments communicate to each other the text of their 
publications. As soon as General Friedrich approves the British text, he will 
communicate to the British Government the text he proposes to publish for 
their approval. As soon as the two Governments have arrived at an 
agreement on the text of both announcements, as far as possible by telegram, 
the declaration shall be published by both sides on the same date agreed upon 
by telegram. 

General Friedrich then stated that he had given instructions before leaving 
Germany that parcels for prisoners in working camps were to be censored 
only at those camps, save in exceptional instances where no possibility of local 
censorship existed, in which cases the parcels would be censored at the 
parent camp before being sent on to their destination as far as possible 
undamaged. He added that as the result of his conversation with the British 
delegates this would be the practice in the future. General Friedrich also 
stated that these parcels were now delivered in the working camps in 
occupied districts as freely as in the camps in Germany, and that in these 
camps the same privileges of correspondence would be permitted to the 
prisoners as in other camps. Special cases of excessive censorship, which 
would lead to the deterioration of the goods, would be enquired into and 
avoided as much as possible in future. 



94 

DOCUMENT NO. 38 

TREATY OF PEACE OF BREST-LITOVSK BETWEEN GERMANY, 
AUSTRIA-HUNGARY, BULGARIA, AND TURKEY ON THE ONE 
HAND, AND RUSSIA ON THE OTHER: TOGETHER WITH A 
GERMAN-RUSSIAN AGREEMENT SUPPLEMENTARY TO THE 

PEACE TREATY 

(3 March 1918) 

« 

SOURCES 

For. Rel., 1918, Russia, I, at 442 

1 Soviet Documents on For. Rel., 1917-1924, at 50 

NOTE 
This treaty ended World War I (1914-1918) hostilities between the new 
Soviet Russian Government and the Central Powers. (It was annulled by the 
Soviet Government on 13 November 1918, two days after the signing of the 
Armistice between Germany and the Allied Powers on 11 November 1918 
[DOCUMENT NO. 41].) The subject of the repatriation of prisoners of war 
was regulated by a "German- Russian Agreement Supplemental to the Peace 
Treaty," negotiated and signed at the same time as the Peace Treaty and in 
accordance with Article 12 of that Treaty. It is interesting to note that in this 
agreement, negotiated early in its existence, the Soviet Union gave prisoners 
of war the option of refusing repatriation. 

EXTRACTS 
TREATY OF PEACE: 

Article 8 
The prisoners of war of both parties will be allowed to return home. The 
regulation of questions in connection with the above will be the subject of 
special treaties mentioned in Article 12. 

Article 12 
The reestablishment of public and private legal relations, the exchange of 
war and civil prisoners, the question of amnesty as well as the question 
regarding merchant ships which have been seized by one or the other side, 
will be provided for in separate treaties with Russia, which form an important 
part of the present peace treaty, and as far as it is possible come into force 
simultaneously with the latter. 

SUPPLEMENTARY GERMAN-RUSSIAN AGREEMENT: 

Article 17 

The exchange of prisoners of war provided for in Article 8 of the peace 
treaty is governed by the following regulations: 

1. The prisoners of war of both parties shall be set at liberty to return 
home, in so far as they do not desire, with the consent of the state which took 
them prisoners, to remain within its boundaries, or leave for another country. 



95 

The exchange of prisoners of war unfit for military service, which has 
already begun, will be continued with the greatest possible speed. 

The exchange of other prisoners of war will take place as speedily as 
possible at established intervals of time to be exactly determined upon by 
means of a mutual agreement. 

Russia will admit and assist, as far as possible, on its territory German 
commissions, which will be charged with the care for German prisoners of 
war. 

2. In liberating prisoners of war, there shall be restored to them their 
private property which was taken away from them by the authorities of the 
state which took them prisoners, and also that part of their earnings which 
has not yet been paid or credited them; this obligation does not apply to 
written documents of military contents. 

3. Each of the contracting parties will refund such expenses for the 
maintenance of its citizens who have been taken prisoners, incurred by the 
opposite party, in so far as these expenses have not been compensated for by 
the work of the prisoners of war in state or private establishments. 

The payment will be made in the currency of the state which made the 
prisoners, in separate instalments for each 50,000 persons, to be paid each 
time within one week of departure. 

4. Immediately upon ratification of the peace treaty a commission shall be 
convoked at a place yet to be determined upon consisting of four repre- 
sentatives of each of the parties, for the purpose of defining the intervals of 
time provided for in part 3 of paragraph 1, and also other details of the 
exchange, especially the method and procedure of repatriation, and in order 
to supervise the putting into effect of the agreements arrived at. 

Furthermore, the commission will establish the expenses in connection 
with prisoners of war, provided for in paragraph 3, liable to a refund by both 
parties. If in the course of two months after the commencement of its work 
the commission does not arrive at an agreement in regard to these expenses, 
the latter shall be definitely established after calling in a neutral chairman by 
a majority of votes; the parties will apply to the President of the Swiss 
Federal Council to nominate the chairman of the commission. 



96 

DOCUMENT NO. 39 

GENERAL ORDERS NO. 106, GENERAL HEADQUARTERS 
AMERICAN EXPEDITIONARY FORCES, FRANCE 

(1 July 1918) 

SOURCE 
16 United States Army in the World War, 1917-1919, at 367 

NOTE 

The contrast between the chivalrous spirit which motivated the bellig- 
erents generally in their treatment of prisoners of war during World War I 
(1914-1918) (see, for example, DOCUMENT NO. 37 and DOCUMENT NO. 
42) and the maltreatment received by so many of them during World War II 
(1939-1945) (see, for example, DOCUMENT NO. 85 and DOCUMENT NO. 
101) and in Korea (1950-1953) (see, for example, DOCUMENT NO. 131 and 
DOCUMENT 134) is probably nowhere so clearly demonstrated as in this 
order issued by General Pershing's headquarters during World War I. 

EXTRACTS 
I. PRISONERS OF WAR 

1. Places of confinement for prisoners of war will be established from time 
to time as may be necessary, and shall be known as Prisoners of War 
Enclosures — the abbreviation of which shall be P. W. E. 

2. Prisoners of war will be under the control of the P. M. G. (Department) 
for the purpose of maintenance and discipline from the time that they are 
delivered to the Division P. W. E. by the combatant troops. Such Division 
and Central P. W. E.'s will be established as become necessary. Prisoners of 
war will be forwarded from Division P. W. E. to the Central P. W. E. as 
promptly as the exigencies of the service permit. The necessary officers and 
guards for Division P. W. E. will be provided by division commanders when 
required. 

3. The general staffs of divisions, corps or army or their authorized 
representatives shall at all times have access to prisoners for the purpose of 
examination. With this exception no person except the escort on duty will be 
allowed to enter any part of P. W. E. or to converse with prisoners. 

4. Prisoners who may be required by the General Staff for the purpose of a 
special examination will be sent to headquarters at their request. If retained 
at headquarters a receipt will be given to the officer commanding the 
company or P. W. E. and the prisoners returned as soon as practicable. 

5. The importance of speedy evacuation of prisoners of war must be born in 
mind, especially in the forward areas. Prisoners will be disarmed imme- 
diately upon capture and sent to Brigade Headquarters, where they will be 
searched, and all concealed weapons which may have escaped observation of 
their captors taken from them. They will then be sent to the Division P. W. E. 
or collecting point, where a thorough search will be conducted. 



97 

6. The responsibility for the examination of prisoners rests entirely with 
the Second Section of the General Staff, and as promptly as possible after 
capture they will be searched and examined by an Intelligence officer. 
Officers will be responsible that nothing except arms are removed from 
prisoners until they have been so examined and searched. All maps, papers of 
a military character, field glasses, compasses, etc., will be taken from them 
under the supervision of a member or representative of the Second Section, 
General Staff. 

7. Prisoners of war will be forwarded from Division P. W. E. to Central P. 
W. E. under an escort furnished by the P. M. G. 

II. PRISONERS OF WAR INFORMATION BUREAU. 
There is hereby established in the Central Records Office, A. G. D., A. E. 
F., the Prisoners of War Information Bureau prescribed by Article 14 of The 
Hague Convention, which is charged with the following duties: 

1. To receive all reports and maintain all records concerning enemy 
prisoners of w r ar. 

2. To collect and keep up to date full information respecting captures, 
internments, transfers, releases, exchanges, escapes, admission into 
hospital, deaths and such other information as may be necessary to make an 
individual return for each prisoner of war. This individual record will show 
the regimental number, name and surname, age, place of origin, rank, unit, 
wounds, date and place of capture, internment, wounding and death, as well 
as any observations of a special character. 

3. To reply to all inquiries about prisoners of war; and all such inquiries, by 
whomsoever received, will be forwarded to the Prisoners of War Information 
Bureau. Replies will be confined to the presence and condition of health of the 
prisoners to the exclusion of all other information. 

4. To receive and keep all personal effects and money taken from prisoners 
of war, and all objects of personal use, valuables, letters, etc., found on the 
field of battle or left by prisoners released or exchanged, or who have escaped 
or died. 

5. To censor prisoners of war correspondence, and to report periodically 
the information disclosed therein. All correspondence and parcels addressed 
to or sent by prisoners of war will be forwarded through this bureau. 

6. To receive and safely keep the wills of prisoners of war in compliance 
with Article 19 of the Hague Convention. 

7. To prepare and maintain records of pay and allocations for prisoners of 
war. 

8. An officer of the Quartermaster Corps will be attached to this bureau. 
This officer will be responsible for the safekeeping of the personal effects, 
money and other valuables received by the Prisoners of War Information 
Bureau, and for the allocations allowed to prisoners of war. 



98 

III. REPORTS AND RETURNS 

1. Field Reports, Enemy Prisoners of War. Commanding officers of all 
organizations capturing prisoners will make a report as soon as practicable to 
division headquarters of all prisoners captured, giving name, number, rank, 
organization and disposition made thereof. These reports will be consolidated 
at division headquarters on form "Field Report of Enemy Prisoners of War" 
and forwarded in accordance with instructions thereon. 

2. Prisoners of War Initial Information Blank. Upon the arrival of an 
enemy prisoner of war at Central P. W. E., or at base hospital, immediately 
after capture, this blank will be completed and distributed in accordance with 
instructions thereon. 

3. Weekly Report of Casualties and Changes, Prisoners of War. This 
report will be rendered weekly by commanding officers of Central P. W. E. 
and labor companies, such information being given as required by 
instructions thereon. Enemy prisoners of war at base hospitals will be 
reported on "Daily Reports of Casualties and Changes for Patients in 
Hospitals," Form A. G. 0., S. D., No. 22, headed "Enemy Prisoners of War," 
and in same manner as on "Weekly Medical Report (Serious Cases)." 

4. Roster. A monthly roster will be prepared in duplicate of all prisoners of 
war in Central P. W. E. and labor companies. This roster will show the 
names, ranks and numbers of the prisoners, the days of labor performed by 
each and other such data as may be required to compute pay and allocations. 
One copy will be forwarded to the Q. M. Prisoners of War Information 
Bureau. 

5. Burial Report. This report will be on form required by Par. 7, sub- 
paragraph f, G. 0. No. 30, c.s., these headquarters, and marked "Enemy 
Prisoners of War." In the field commanding officers of burial parties will give 
all information possible on burial report to determine the identity of enemy 
dead, and forward identification tags and all personal effects except clothing 
to Prisoners of War Information Bureau. 

6. Report to Violent Deaths and Injuries. In the case of the death of a 
prisoner of war other than through natural causes a report will be sent 
immediately to the C. R. 0., A. G. D., A. E. F., through official channels, of 
all facts connected with such death. A duplicate of this report will be sent to 
the Prisoners of War Information Bureau. 

7. Return of Personal Effects. All personal effects taken from prisoners of 
war will be listed, packed and forwarded with list by registered mail through 
the nearest Quartermaster to the Prisoners of War Information Bureau, C. 
R. 0., A. G. D., A. E. F., plainly labelled with name of prisoner and marked 
"Personal Effects of Prisoner of War." Immediately upon the death of a 
prisoner of war all personal effects on person thereof will be listed and 
disposed of as required above. 



99 

IV. REGIME OF PRISONERS OF WAR. 

1. The law of nature and of nations will be sacredly heeded in the treatment 
of prisoners of war. They will be accorded every consideration dictated by the 
principles of humanity. The behavior of a generous and chivalrous people 
toward enemy prisoners of war will be punctiliously observed. There will be 
no departure from this fixed rule of conduct unless the enemy by the 
mistreatment of American prisoners in his hands makes it necessary. 

2. In strict compliance with The Hague Convention, prisoners of war will 
be retrained within fixed limits, but they will not be confined except as an 
indispensable measure of safety, and then only while the circumstances which 
necessitate the measure continue to exist; they will not be kept or employed 
within range of their own fire; they will be treated as regards food, lodging 
and clothing on the same footing as the troops of the American Army; their 
personal belongings, including medals and identity discs, and excepting 
arms, horses and military papers, will remain their property, and the 
acceptance of gifts from prisoners, as well as the appropriation of articles 
which have belonged to the enemy's dead, are strictly prohibited; they may 
receive presents and relief in kind and dispatch and receive correspondence, 
subject only to necessary and proper surveillance and censorship; they shall 
enjoy liberty in the exercise of their religion, and they will be permitted to 
execute wills, which will be preserved for transmission to the proper parties 
in interest. 

3. By the Treaty of Berlin, 1799, still in force, the United States of America 
and the King of Prussia solemnly pledge themselves to the world and to each 
other "That the prisoners of war whom they may take from the other shall be 
placed in wholesome situations;" that they shall not be confined; that the 
officers shall have comfortable quarters, and the men be disposed in 
cantonments or barracks as roomy and good as provided for their own troops, 
and that they shall be allowed the same rations. "And it is declared that 
neither the pretense that war dissolves all treaties, nor any other whatever, 
shall be considered as annulling or suspending this and the preceding articles; 
but, on the contrary, that the state of war is precisely that for which they are 
provided, and during which they are to be sacredly observed as the most 
acknowledged articles in the law of nature and nations." 

The obligations of this treaty will be scrupulously observed unless and until 
substantially violated by Germany, in which case further orders will be 
published from these headquarters. 

V. DISCIPLINE. 

1. Prisoners of war are subject to discipline under the laws, regulations and 
orders in force in the Army of the United States. Any act of insubordination 
justifies the adoption towards them of such measures of severity as may be 
considered necessary. 

2. The maintenance of discipline among prisoners of war is a function of the 
Provost Marshal General. No collective punishment will be imposed for the 
misdemeanor or escape of an individual. Punishments will be such only as 



100 

could lawfully be inflicted upon our own troops. A monthly report of all 
punishments imposed will be made by Central Enclosure and labor company 
commanders to the Provost Marshal General. 

3. If it becomes necessary to try a prisoner of war by a military tribunal the 
accused will be afforded proper opportunity of preparing his defense and shall 
be allowed free communication with his witnesses. In cases of grave offenses, 
the prisoner of war may be represented by counsel of his own selection 
whenever military exigencies and the necessities of discipline will permit it. 

4. A prisoner of war shall not be sentenced to death except for an offense 
for which an American solider may be capitally punished. The sentence of 
death shall not be pronounced by any court other than a general court-martial 
or military commission appointed by the C. in C. Punishments other than 
death may be awarded by provost courts appointed by the Provost Marshal 
General, and their sentences may be carried into effect when approved by 
him. The commanding officer of a prisoners of war company or of a P. W. E. 
may, for a minor offense, summarily impose a punishment not to exceed one 
month's confinement. 

VI. WORK. 

1. Prisoners of war, not officers, will be required to labor for the public 
service. The labor exacted shall not be excessive, but the welfare of the 
prisoners themselves, as well as the interest of the United States, requires 
the constant employment of the largest number of prisoner laborers possible. 

2. Prisoner of war labor companies will be formed at Central P. W. E. They 
will w T ork under the direction of the department of the army to which assigned 
for labor. 

3. Prisoner of w T ar companies will be commanded by an officer appointed by 
these headquarters, who will be responsible for the discipline and 
administration of the company. The necessary non-commissioned officers and 
men for the proper administration of the company will be assigned by the 
Provost Marshal General, who will likewise furnish the necessary 7 guards and 
escort. 

4. An allocation of pay will be allowed to prisoners of war for each day's 
labor (other than that necessary for their comfort or for the upkeep of the 
places of internment), which will be paid by the Q.M. Prisoner of War 
Information Bureau in tokens or scrip provided by the Q. M. Department 
under regulations to be issued from these headquarters. 

VII. CONTACT WITH PRISONERS OF WAR. 

1. Provision will be made to allow regularly constituted relief societies and 
their accredited agents to carry on and effectively accomplish their welfare 
w r ork among the prisoners of war within the bounds imposed by military 
necessities and administrative regulations. 

2. Permission will be granted to members of a neutral legation or embassy 
to visit prisoners of war. In such visits free intercourse will be allowed 
between the visitors and the prisoners out of hearing of any member of the 
company staff. 



101 

DOCUMENT NO.40 

AGREEMENT BETWEEN THE BRITISH AND GERMAN GOVERN- 
MENTS CONCERNING COMBATANT PRISONERS OF WAR AND 

CIVILIANS 

(The Hague, 14 July 1918) 

SOURCES 

111BFSP279 

Pari Papers, "Misc., No. 20(1918)" 

NOTE 

Despite the length and breadth of the special bilateral agreement con- 
cerning prisoners of war entered into during World War I (1914-1918) by 
Great Britain and Germany on 2 July 1917 (DOCUMENT NO. 37), just a year 
later they found it both necessary and appropriate to enter into a new and 
supplementary agreement on the the same subject and in even greater 
length. These two agreements between Great Britain and Germany and the 
similar, but even more complete, agreement between Germany and the 
United States (DOCUMENT NO. 42) clearly demonstrate that no matter 
how detailed an international convention on the subject may be, it is axio- 
matic that new problems, not covered by the convention, will always arise. 
The draftsmen of the 1949 Geveva Prisoner-of-War Convention (DOCU- 
MENT NO. 108) conceded this when they included, in Article 6 of that Con- 
vention, a provision authorizing the Parties to enter into special agreements 
which do not adversly affect the prisoners of war. 

EXTRACTS 

1. — Repatriation and Internment in Neutral Countries of 

Combatants and Civilians. 

1. Extension of Existing Agreements. 

Art. I. — Warrant officers and non-commissioned officers, as well as men, 

who have been prisoners of war for more than eighteen months on the date on 

which this Agreement comes into force, shall be repatriated head for head, 

and rank for rank, with the exception of the prisoners specified in Article 8. 

For the purpose of this exchange no distinction shall be made between the 
different ranks of the warrant officers and non-commissioned officers. 

From the date on which this Agreement comes into force, paragraph 11 of 
The Hague Agreement of the 2nd July, 1917, shall only apply to officers. 

II. — All combatant prisoners of war who are interned in the Netherlands 
and in Switzerland in accordance with existing agreements on the date on 
which this Agreement comes into force shall, with the co-operation of the 
Netherlands and Swiss Governments, be repatriated without regard to the 
surplus. Subject to the consent of the Netherlands Government, the same 
shall apply to all other members of the forces of the two countries who are 



102 

interned in the Netherlands on the date on which this Agreement comes into 
force. 

III. — The civilian subjects of each of the two parties, including all officers 
and other ratings of the mercantile marine, who are in any territory which is 
in the power of the other party on the date on which this Agreement comes 
into force, shall, regardless of age and sex, be repatriated if they so desire. 
The British Government shall, however, have the right to retain a number 
not exceeding seventy, and the German Government a number not exceeding 
forty, including in each case those retained by virtue of previous 
Agreements. 

IV. — The surplus of valid German civilians to be repatriated under the 
provisions of Article III shall be met by the surplus of British combatants to 
be repatriated from neutral countries in pursuance of Article II. The number 
of these British combatants shall be taken as 4,820, composed as follows: — 

(a.) 320 officers and 2,200 warrant and non-commissioned officers interned 
in Holland under The Hague Agreement of the 2nd July, 1917. 

(b.) 2,300 combatants of all ranks, including those interned in Holland by 
order of the Netherlands Government. 

If these numbers are not reached, the deficiency shall be made up by the 
repatriation from Germany of an equal number of valid British combatant 
prisoners of war, who shall be of corresponding ranks, in so far as concerns 
sub-paragraph (a) above. 

Should the number of valid British civilians who are repatriated in 
pursuance of Article III amount to less than 6,000, the deficiency shall be 
made up by the repatriation of an equal number of valid British combatant 
prisoners of war. 

It is further provided that if the number of valid German civilians who are 
repatriated in pursuance of Article III exceeds 20,000, one valid British 
combatant prisoner of war shall be repatriated for every three German 
civilians above that number. 

The selection of the combatant prisoners of war referred to in the three 
preceding paragraphs shall be made according to priority of capture. 

For the purpose of this article a valid ("diensttauglich") combatant or a 
valid ("wehrfahig") civilian shall be deemed to be one who is not eligible for 
repatriation under any previous Agreement. 

V. — Civilians, including officers and other ratings of the mercantile 
marine, interned in the Netherlands in accordance with The Hague 
Agreement of the 2nd July, 1917, shall be repatriated as soon as possible with 
the co-operation of the Netherlands Government. 

VI. — Members of the German forces in tropical regions who have been 
captured, or who may be captured, by the British forces, shall, failing their 
repatriation under the provisions of this or any other Agreement, be 
transferred to Great Britain as soon as opportunity offers. 

VII. — The provisions of paragraph 11 of The Hague Agreement of the 2nd 
July, 1917, shall be extended so as to include German officers in British 
oversea Dominions and Protectorates and occupied territories. 



103 

VIII. — The petty officers and men of submarines who have been in 
captivity for more than eighteen months on the date on which this Agreement 
comes into force shall be interned in the Netherlands. 

IX. — The transport of the persons referred to in Articles I to VIII shall be 
carried out as provided in Annexes I and II to this Agreement. The necessary 
measures shall be taken as soon as this Agreement comes into force. 

X. — Combatant prisoners of war who, on the date on which this 
Agreement comes into force, have not fulfilled the conditions set forth in 
Article I thereof, shall be exchanged as soon as possible after becoming 
qualified. 

XI. — The foregoing provisions shall be brought to the notice of those 
whom they concern by repeated insertions in the press and by notices in the 
camps. 

XII. — Representatives of the protecting Powers are empowered to 
supervise the execution of the provisions of Articles I to XL 

XIII. — Lists of those civilians who wish to leave the territory of the State 
where they are residing shall be furnished without delay to their 
Government. 

XIV. — The provisions of Articles I and VIII of this Agreement and of 
paragraph 11 of The Hague Agreement of the 2nd July, 1917, shall lapse on 
the 1st August, 1919. The termination shall not affect those persons who are 
eligible for repatriation or internment in neutral countries on the date when 
the provisions lapse. 

2. Further Provisions with regard to Wounded and Sick 
Combatant Prisoners of War. 

XV. — Visits to camps by Travelling Medical Commissions shall be 
resumed. Each such Commission shall be composed of two neutral doctors 
and one doctor of the captor State. The function of these Commissions shall be 
to ascertain the combatant prisoners of war who are eligible for repatriation 
or internment in a neutral country on grounds of their physical condition, and 
their decisions shall be made in accordance with the schedules of disabilities 
agreed between the two Governments. 

Travelling Commissions shall visit the camps in the United Kingdom and 
Germany once every three months. 

Paragraphs 7 and 9 of The Hague Agreement of the 2nd July, 1917, are 
hereby cancelled. 

XVI. — The following prisoners of war shall be brought before the 
Travelling Commissions, whether they are in camps or in working parties: — 

1. Those recommended by Camp Medical Officers in lists drawn up by 
them; 

2. Those whose names are proposed by the Government of their country of 
origin to the Government of the captor State; 

3. Those recommended by Help Committees of camps. (See Article 51.) 
For the purpose mentioned in paragraph 1, sub-paragraph 3, the Help 

Committees of camps shall be authorised to prepare once a month a list of 
prisoners of war who are in, or attached to, their camp and to deliver this list 



104 

to the Commandants. 

The lists prepared by the Camp Medical Officers and by the Help 
Committees shall be kept by the Commandants; the lists of prisoners of war 
proposed by their country of origin shall be handed over to the Travelling 
Commissions. 

In the working parties, the representative (see Article LI) shall transmit to 
the Help Committee of the main camp lists of the prisoners of war in his party, 
who should, in his opinion, be brought before a Commission. These lists shall 
be sent every month to the Commandant of the main camp, who will attach 
them to the lists drawn up in that camp. The prisoners of war named in the 
former lists shall be brought before a Travelling Commission equally with 
those in the latter lists. 

XVII. — The Travelling Commissions on their arrival at any camp and 
before beginning their examinations shall inspect the lists in the possession of 
the Commandant and shall compare them with those in their own possession. 

Should any prisoner of war whose name appears on one of the lists have 
been transferred before the arrival of the Commission to another camp, the 
Commission shall be informed of the fact. The Commission shall transmit the 
names of any such prisoners to a central authority designated by the captor 
State. This authority shall arrange for the examination of all such prisoners in 
every case by one of the Travelling Commissions. 

XVIII. — Prisoners of war who are within an area of operations or on lines 
of communication, and whose names appear on the lists furnished by the 
Goverment of their own country or by Help Committees or representatives, 
but not on that of the Camp Medical Officer, shall be examined by the Camp 
Medical Officer. If the Camp Medical Officer finds them eligible for 
repatriation or internment, they shall be brought before a Travelling 
Commission. For the purpose of the examination these prisoners, as well as 
those who are recommended by the Camp Medical Officer, shall be assembled 
at a place accessible to a Travelling Commission. 

XIX. — Any prisoner of war suffering from any injury or sickness, 
however caused, which falls within the schedule of disabilities, shall be 
repatriated or interned in a neutral country, provided that a self-inflicted 
injury shall not confer any right under this clause. 

XX. — When prisoners of war are recognised as suffering from curable 
tuberculosis or malaria, or when there is good ground for suspecting 
tuberculosis, they shall be interned in Switzerland. 

Prisoners of war recognised as suffering from incurable tuberculosis shall 
be repatriated forthwith. 

The medical authorities concerned shall take a lenient view of cases of 
nervous debility ("psychasthenic') which come under examination. 

XXI. — The adverse decisions of the Travelling Commission shall be 
communicated to the prisoners' Government, with a statement in each case of 
the reasons for rejection and the source of the recommendation for 
repatriation or internment. 



105 

XXII. — Prisoners of war whose cases are recognised by the medical 
authorities of the captor State as urgent on account of the serious nature of 
their injuries or sickness shall be repatriated or interned at once without 
waiting for the visit of the Travelling Commissions. 

XXII. — Prisoners of war considered suitable by the Travelling 
Commissions for repatriation or internment shall be examined by a 
Commission of Control, whose decision shall be final. The Commissions of 
Control shall be composed of three neutral medical officers and three medical 
officers of the captor State. If opinions are qually divided the senior neutral 
medical officer shall have the casting vote. 

The adverse decisions of the Commissions of Control shall be 
communicated as provided in Article XXI. 

Prisoners of war passed for repatriation or internment by the Commissions 
of Control shall be repatriated or sent to a neutral country as quickly as 
possible. 

XXIV. — Prisoners of war transferred from either country to a neutral 
country for internment shall be repatriated, with the co-operation of the 
neutral Government, if they are found to fulfil the conditions prescribed in the 
schedule of disabilities for repatriation. 

The decision shall rest with the medical authorities of the neutral country in 
which the prisoners are interned, whose Government shall be requested to 
conduct examinations once in every three months. 

Paragraph 8 of The Hague Agreement of the 2nd July, 1917, is hereby 
cancelled. 

3. Principles common to 1 and 2. 

XXV. — If a combatant prisoner of war who is awaiting trial for any offence 
is eligible for repatriation or internment in a neutral country, he may be 
detained until the end of the trial, and, subject to the limit provided in 
paragraph 2, until the end of the sentence, if any. 

If a combatant prisoner of war, who has been awarded or is undergoing any 
sentence which has not yet been completed, is eligible for repatriation or 
internment in a neutral country, he may be detained for a period not 
exceeding two months after the date on which he would otherwise have been 
repatriated or interned. 

In every case in which the sentence has not been completed the prisoner's 
Government shall be informed by the captor Government of the nature of the 
offence, the sentence, and the length of the sentence unexpired. 

The provisions of this article shall not affect cases in which a neutral 
country declines to receive a prisoner of war convicted of a grave offence. 

Civilians awaiting trial or under sentence may be detained until the 
expiration of their sentences. 

XXVI. — The employment of combatant prisoners of war and civilians 
repatriated under this Agreement shall be limited as follows: — 

Combatant prisoners of war shall not be employed in military service on 
any front of operations or on the lines of communication or within occupied or 



106 

other foreign territory. Naval prisoners of war shall be precluded from any 
employment afloat or ashore in which they might be actively engaged with 
the enemy. 

Civilians shall not be employed in any naval or military service, nor in the 
mercantile marine, including coasting vessels. They shall not be called on to 
undertake any compulsory national service. 

XXVII. — Combatant prisoners of war who are repatriated or transferred 
to a neutral country, and civilians who are repatriated, shall be allowed to 
take with them their personal property; subject to the following restric- 
tions: — 

(a.) All regulations governing export must be obeyed; 

(b. ) Written or printed matter can only be allowed if circumstances permit 
of its being censored. This does not apply to certificates of birth, baptism, 
marriage, and military service, or any other official documents affecting the 
owner's personal status; 

(c. ) The total weight of the luggage taken by the prisoners with them must 
not exceed 100 lb. (British) or 90 lb. (German), exclusive of hand luggage. 
Prisoners travelling in the same party shall be permitted to adjust amongst 
themselves cases of overweight and underweight. 

A receipt shall be given for articles retained, and care shall be taken for the 
safety of such articles. 

The limit of 100 lb. weight shall not apply in the case of persons brought 
from overseas, but they shall be allowed to bring as much luggage as can 
reasonably be transported. 

II. — Treatment of Combatant and Civilian Prisoners of War. 

1. General Dispositions. 

XXVIII. — The treatment of prisoners of war shall follow the principles 
laid down in international Agreements. In particular they are to be protected 
from acts of violence and personal insults and from public curiosity, and are to 
be treated humanely. They may not be compelled to do any work which is 
directly connected with the operations of war. 

XXIX. — Forcible means of any kind to compel prisoners of war to give 
information about their army or their country are strictly forbidden. 
Prisoners of war, who refuse to give information may neither be threatened 
nor insulted nor subjected to any other treatment which puts them in a less 
favourable position than other prisoners. 

XXX. — Money in the possession of prisoners of war may be taken from 
them only by the orders of an officer, and only then when it is possible to make 
a proper record. Bank-notes and silver money of the prisoners' country of 
origin may not be changed without their consent. Money taken from a 
prisoner shall be credited to him. A receipt for it shall be handed to him. 
Objects of value, such as rings, watches, cigar and cigarette cases, as well as 
badges of rank and decorations, may not be taken from prisoners. 



107 

The confiscation of personal papers belonging to prisoners of war is strictly 
forbidden. The captor State may take copies of such papers. 

XXXI. — Both Governments shall give instructions to the military 
authorities to take severe measures against any breach of the provisions of 
Articles XXIX and XXX. 

XXXII. — The duration of the daily work of prisoners of war shall not 
exceed that of the civilian workers of the district, and shall not, as a rule, 
exceed ten hours. The time occupied in going to and from work shall be 
included in this period if the distance is more than 1 kilom. from the place at 
which the prisoner of war is located. 

An interval of one hour shall be allowed for the mid-day meal. This hour 
shall be excluded in calculating the hours of work. 

Prisoners of war who work shall be allowed one day of rest per week. 
Whenever possible this shall be Sunday. 

In the case of any accident happening to a prisoner of war when at work, a 
certificate stating the nature of the accident shall be given to the man by the 
authorities of the captor State on his liberation. 

XXXIII. — Prisoners of war shall not be employed in mines and quarries if 
they are unfitted for such work on account of their physical condition or on 
account of the nature of their previous occupation. Before prisoners of war 
are employed in mines or quarries they shall be medically examined, and they 
shall further be medically examined once in every month during the 
continuance of such employment. Any prisoner of war, in whose case the 
examining medical officer considers it necessary, shall be removed to some 
other employment, which shall not be more severe. 

Prisoners of war who work in mines or quarries shall be placed on the same 
footing as regards duration of work as free workmen employed in the same 
class of work; and they shall be equally entitled to any increase in rations 
which is allowed to the free workmen. 

2. Protection after Capture. 

XXXIV. — On first capture prisoners of war shall be brought back as soon 
as possible to a collecting camp, which must be at least 30 kilom. from the 
firing line. Both Governments shall give instructions to the military 
authorities to take severe measures against any breach of the provisions of 
this article. 

3. Prisoners Retained in an Area of Operations. 

XXXV. — Only those prisoners of war who are physically fit for labour may 
be retained in an area of operations, or on lines of communication. Exception 
shall be made in the case of prisoners, who, as a result of wounds or sickness, 
cannot be transported to hospitals outside the area of operations. 

All other prisoners shall be removed from the area of operations as soon as 
possible. 

XXXVI. — Prisoners of war in an area of operations or on lines of 
communication shall be treated in the same way as prisoners in home 
territory. Special care shall be taken in the case of the former to ensure the 



108 

strict execution of the provisions of this Agreement relating to food and 
clothing. 

XXXVII. — All prisoners of war who are retained in an area of operations 
or on lines of communication shall be permitted to send letters and postcards 
under the same conditions as prisoners elsewhere, and to receive letters, 
postcards, remittances, and parcels. They shall be allowed to communicate to 
their families, within one month of their capture, an exact address to which 
their letters, &c, can be regularly and speedily sent. Prisoners shall be 
allowed to communicate to their families without delay any change of this 
address. They shall be provided with the necessary writing materials. 

XXXVIII. — Prisoners of war retained in an area of operations or on lines 
of communication may only be employed at a distance of at least 30 kilom. 
from the firing line. 

XXXIX. — Each Government shall give its favourable consideration to 
any request by the other Government for permission for representatives of 
the protecting Legation to inspect a camp in an area of operations or on lines 
of communication. 

4. Notification of Capture. 

XL. — The name, rank and regiment of every prisoner of war shall be 
notified within one month of his capture to the competent authorities of the 
captor State, whence it shall be transmitted as soon as possible to the 
Government of his country of origin. 

Every prisoner shall be enabled to send to his family within one week after 
his capture a postcard containing information of his capture and of the state of 
his health. He shall be provided with the necessary writing materials. These 
cards shall be forwarded as rapidly as possible, and shall not be delayed. 

Paragraph 22 of The Hague Agreement of the 2nd July, 1917, is hereby 
cancelled. 

XL I. — Facilities shall be given to every prisoner of war, within three days 
after his arrival in a prisoners' camp, to communicate to his family by means 
of a printed card the address at which they can send him letters, postcards, 
remittances, and parcels. These postcards shall be despatched without any 
delay, and shall not be reckoned in the number of letters or postcards a 
prisoner is authorised to write. 

The provisions of this article shall also apply whenever a prisoner of war is 
transferred from one camp to another. 

5. Equipment and Organisation of Camps. 
Officers' Camps. 

XLII. — The equipment and organisation of officers' camps shall not fall 
below the minimum conditions set forth in Annex III to this Agreement. 

In British Oversea Dominions and Protectorates and occupied territories 
the provisions of Annex III with regard to accommodation and sanitary 
arrangements shall apply in so far as they are suited to the local and climatic 
conditions. The accommodation and sanitary arrangements shall, however, 
in no case be less favourable than the provisions of Annex III. In tropical 



109 

places barracks of corrugated iron may only be used if they are sufficiently 
protected against sun and rain by wood or other suitable material. 

These minimum conditions shall be fulfilled not more than two months after 
this Agreement comes into force, save in so far as new construction or 
structural alterations may be required, for which an additional six weeks 
shall be allowed. 

XLIII. — The senior officer prisoner of war in any camp is authorised to 
inform the protecting Legation whether these minimum conditions have been 
complied with. This information may be given on any date after that on which 
the conditions mentioned in the preceding article should have been fulfilled. 

This information shall be transmitted to the Commandant of the camp, who 
shall forward it through the usual channel to the Legation. The Commandant 
may add to it any observations he thinks fit. 

Should the Commandant disagree with the statements of the senior officer 
prisoner of war the Government of the captor State shall invite the protecting 
Legation to send one of its members to the camp forthwith. The report of this 
delegate shall be transmitted to the Government of the captor State and to 
the prisoners' Government. 
Camps for Ranks other than officers. 

XLIV. — The equipment and organisation of main camps for ranks other 
than officers shall not fall below the minimum conditions set forth in Annex IV 
to this Agreement. 

In the British Oversea Dominions and Protectorates and occupied 
territories the provisions of Annex IV with regard to the accommodation and 
sanitary arrangements shall apply in so far as they are suited to the local and 
climatic conditions. The accommodation and sanitary arrangements shall, 
however, in no case be less favourable than the provisions of Annex IV. In 
tropical places barracks of corrugated iron may only be used if they are 
sufficiently protected against sun and rain by wood or other suitable material. 

These minimum conditions shall be fulfilled not more than three months 
from the date on which this Agreement comes into force, save in so far as new 
construction or structural alterations may be required, for which an 
additional six weeks shall be allowed. 

The same conditions shall apply to working parties as far as the local 
circumstances permit. 

Nothing in the above shall preclude the accommodation of ranks other than 
officers under canvas at suitable times of the year and under conditions which 
are in medical opinion not injurious to health. 

6. Food. 

XLV. — The daily rations of prisoners of war shall be sufficient in quantity 
and quality, especially as regards meat and vegetables, regard being had to 
the restrictions imposed on the consumption of food by the civil population of 
the country. 

Officers shall be assisted as far as possible to manage their own messing. 

XLVI. — Combatant prisoners of war shall receive as far as possible the 
same allowance of the rationed articles of food as the civil population. The 



110 

daily caloric values of their diets shall in no case fall below the following 
minima: — 

2,000 calories for non-workers; 

2,500 calories for ordinary workers; 

2,850 calories for heavy workers. 

The daily ration of bread shall in no case be less than 250 grammes, and in 
the case of ordinary workers there shall be a daily addition to this ration of 100 
grammes of bread or other cereals, and in the case of heavy workers a daily 
addition of 150 grammes of bread or other cereals. 

XL VI I. — In camps for prisoners of war canteens shall as far as possible be 
maintained, in which prisoners can obtain at reasonable prices such articles of 
daily use as are available. 

7. Punishments. 

XLVIII. — Paragraph 16 of The Hague Agreement of the 2nd July, 1917, is 
hereby cancelled, and the following is substituted therefor: — 

The duration of the punishment for a single attempt to escape on the part of 
a prisoner of war, even if repeated, shall not exceed military confinment for a 
period of fourteen days, and, if made in concert with other prisoners, a period 
of twenty-eight days. 

The duration of the punishment for such an attempt to escape combined 
with other punishable actions consequent upon or incidental to such attempt 
in respect of property, whether in relation to the appropriation or possession 
thereof, or injury thereto, shall not exceed military confinement for a period 
of two months. 

The foregoing provisions shall apply to attempts to escape from arrest of 
any kind, or from prison, in the same manner as they apply to attempts to 
escape from ordinary camps. 

Prisoners of war recaptured after an attempt to escape shall not be 
subjected to any unnecessary harshness. Any insult or injury to such 
prisoners shall be severely punished. They shall be protected from violence of 
every kind. In particular, officers recaptured after an attempt to escape shall 
be treated in a manner suitable to their rank. 

XLIX. — Collective punishments or deprivations of privilege on account of 
the misconduct of individuals are forbidden. 

L. — Punishments which are undergone in camp cells shall be carried out 
under the conditions provided in Annexes V and VI to this Agreement. 

8. Help Committees. 

LI. — In every main camp and in every working camp numbering more 
than 100 prisoners of war of the same nationality there shall be established a 
Help Committee freely chosen by the prisoners from among themselves. The 
membership of the committee shall require the approval of the Commandant. 

In like manner every working party numbering from 10 to 100 men of the 
same nationality shall choose a representative. So far as circumstances 
permit, representatives of working parties numbering less than ten men of 
the same nationality shall also be recognised. This representative shall be the 
channel of communication between prisoners attached to the working party 



Ill 

and the Help Committee of the main camp. 

LII. — Help Committee and representatives shall receive and distribute 
the consignments in bulk of bread, other victuals, clothing, books, &c, and 
also single parcels, the proper recipient of which cannot be ascertained. 

Representatives are authorised to correspond freely with Help 
Committees, and Help Committees with the societies or individuals by whom 
parcels are despatched, provided that this correspondence relates solely to 
consignments of goods, whether these be received in bulk or as individual 
parcels. 

The Help Committee of each main camp is authorised to correspond with 
the Help Committees of the working camps and with the representatives of 
the working parties attached thereto with respect to the drawing up and 
transmission of the lists provided for in Articles 16 and 18. Letters written for 
this purpose shall be in addition to the number of letters authorised by 
existing regulations. 

Help Committee shall draw up, under the supervision of the Com- 
mandants, lists of men who have had no news of their families for at least 
three months. These lists shall contain the names of the prisoners, the 
addresses of the families and brief communications and requests for news 
limited to a length of twenty words in telegraphic style. These lists shall be 
sent to the Red Cross Committee of the captor State or to the International 
Red Cross Committee at Geneva. These Committees shall obtain and 
forward the answers of the families in question as rapidly as possible. 

LIII. — Medicines, medical appliances and stimulants for medical 
purposes, despatched in bulk from an authorised source to the Help 
Committees of camps, shall be admitted. The distribution of these articles to 
the prisoners in the main camps and in the dependent working camps shall be 
carried out by the Help Committee of each camp under the supervision of the 
camp medical officer. 

9. Relations with Protecting Powers. 

LIV. — Prisoners of war may address written requests or complaints 
regarding treatment or conditions in camps, or on subjects of purely personal 
interest to the writer, to the protecting Legation, or may make them verbally 
to the visiting members of that Legation. 

Such communications, if in writing, shall be handed to the Help Committee 
of the camp, or, in the case of a working party, to the representative for 
transmission to the Help Committee of the main camp. The Help Committee 
may suppress such communications if it considers them to be useless or 
without foundation. Otherwise, the Help Committee shall forward them to 
the Commandant, who shall transmit them without delay to the protecting 
Legation through the usual channel. 

The military authorities may not withhold complaints of this kind unless 
they contain statements which are intentionally false or are written in 
insulting language. An order to suppress such a document may only be given 
by the War Office, or, in the case of prisoners of war overseas, by the chief 



112 



local military authority. When such an order has been given, the writer and 
the protecting Legation shall be informed of the fact and of the reasons for it. 
The military authorities shall add such observations on the prisoner's 
requests and complaints as will enable the Legation to appreciate the merits 
of the case. 

For the time being, communications addressed to the protecting Legation 
shall not be reckoned in the number of letters that a prisoner is allowed to 
write. 

In no case shall written communications addressed to the Commandant and 
intended for him alone be counted in the number of authorised letters and 
postcards. 

10. Parcels and Postal Service. 

LV. — Parcels addressed to individual prisoners of war shall be delivered 
to them as quickly as possible. Commandants of camps and working parties 
are forbidden to withhold them. The contents shall be examined with all care 
to prevent injury, in the presence of the addressees or of their repre- 
sentative. Preserved foods shall not be opened until they are needed for 
consumption, and shall not be delivered to the owner in a manner which unfits 
them for consumption. 

The contents shall be handed over to the addressees, either on arrival or, if 
the addressees so prefer, as they are required. 

Every recipient of a parcel shall have the right to despatch to the sender a 
postcard specially printed, so as to contain only an acknowledgment of the 
receipt and a statement of the contents. This postcard shall be additional to 
the number of letters he is authorised to write. 

The despatch to prisoners of books and pamphlets shall be authorised, 
subject to censorship. Books may be bound. 

Parcels may be sent in the ships for the transport of prisoners of war 
between Great Britain and the Netherlands. 

LVI. — Parcels addressed to individuals may be packed together in bulk, 
provided the packages are of such a kind as to be conveniently carried by sea 
and rail. 

Unaddressed parcels may likewise be packed in bulk and the packages 
addressed to the Help Committees of main camps. These Help Committees 
shall distribute the parcels to the Help Committees and representatives in 
working parties attached to their camp. Such packages shall be clearly 
marked as follows: — 

"For distribution to prisoners of war who have no parcels." 

LVII. — Care shall be taken to accelerate the correspondence of prisoners 
of war as far as possible. 

11. Publication of Agreements in the Camps. 

LVIII. —The provisions of Article XXVIII-LVII, and of Annexes III-VI, 
as well as of any future agreements between the two Governments 
concerning the treatment of prisoners of war, shall be posted up in a 
conspicuous place in all the camps and working parties in the prisoners' own 
language. 



113 

12. Application to Civilian Prisoners of War. 
LIX. — The provisions of Article XLIV and Annex IV, and of Articles 
XLV-LVIII, shall apply to civilian prisoners of war in the same manner as to 
combatant prisoners of war, with such modifications as circumstances may 
require, provided always that any such modifications shall not be less 
favourable to the prisoners than the original provisions. 



114 

DOCUMENT NO. 41 

CONDITIONS OF AN ARMISTICE BETWEEN THE ALLIED AND 

ASSOCIATED POWERS AND GERMANY 

(Compiegne, 11 November 1918) 

SOURCES 

2 Bevans 9 
13 AJIL Supp. 97 
Pari. Papers, "Misc., No. 25 (1918)" 

3Malloy3307 

NOTE 

This is the armistice agreement which brought about a cessation of the 
hostilities of World War I (1914-1918). The war itself was brought to an end 
by the Treaty of Versailles of 28 June 1919 (DOCUMENT NO. 44). Like 
many of its counterparts which have followed the complete victory of one side 
and the complete defeat of the other and a dictated armistice agreement (see, 
for example, DOCUMENT NO. 50 and DOCUMENT NO. 64), the provisions 
in this agreement for the repatriation of the members of the armed forces of 
the victor nations who were being held as prisoners of war by the defeated 
side were not matched by a similar requirement for the repatriation of the 
members of the armed forces of the vanquished nation who were being held as 
prisoners of war by the victors; that had to await the peace treaty. This 
situation was not improved by the provisions of Article 75(1) of the 1929 
Geneva Prisoner-of-War Convention (DOCUMENT NO. 49) and the 
excesses in this respect which followed each termination of hostilities in 
World War II (1939-1945) (see, for example, (DOCUMENT NO. 115) led to 
the drafting and adoption of Article 118 of the 1949 Geneva Prisoner-of-War 
Convention (DOCUMENT NO. 108). However, even the unambiguous 
provisions of that article have not proven successful in accomplishing their 
purpose. (See DOCUMENT NO. 167.) 

EXTRACTS 

X. The immediate repatriation, without reciprocity, according to detailed 
conditions which shall be fixed, of all allied and United States prisoners of 
war, including those under trial and condemned. The allied powers and the 
United States of America shall be able to dispose of these prisoners as they 
think fit. This condition annuls all other conventions regarding prisoners of 
war, including that of July, 1918, now being ratified. However, the return of 
German prisoners of war interned in Holland and Switzerland shall continue 
as heretofore. The return of German prisoners of war shall be settled at the 
conclusion of the peace preliminaries. 

XI. Sick and wounded who can not be removed from territory evacuated by 
the German forces shall be cared for by German personnel, who shall be left 
on the spot with the material required. 



115 
DOCUMENT NO. 42 

AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND 

GERMANY CONCERNING PRISONERS OF WAR, SANITARY 

PERSONNEL, AND CIVILIANS 

(Berne, 11 November 1918) 

SOURCES 
For. Rel., 1918, Supp. 2, at 103 
13 AJIL Supp. 1 

NOTE 
During the course of World War I (1914-1918) practically all of the 
belligerents found it necessary to supplement the provisions of the 1907 
Hague IV Regulations (DOCUMENT NO. 33) relating to prisoners of war 
through the medium of special bilateral and multilateral agreement (see, for 
example, DOCUMENT NO. 37 and DOCUMENT NO. 40). However, an 
examination of those instruments will quickly reveal that each was somewhat 
of a hodge-podge negotiated in order to take care of a number of specific, 
unrelated problems which had arisen and which required solutions. While the 
agreement between the United States and Germany appearing below seems 
at first glance to fall into the same category, opening, as it does, with 22 
articles dealing with various problems of repatriation and internment in a 
neutral country, actually, Articles 23-184 of the agreement and the seven 
annexes probably constitute the single most complete general agreement 
governing the treatment of prisoners of war ever drafted, including the 1929 
and 1949 Geneva Prisoner-of-War Conventions (DOCUMENT NO. 49 and 
DOCUMENT NO. 108, respectively). Because it was signed on 11 November 
1918, the date upon which the armistice ending World War I hostilities was 
also signed (DOCUMENT NO. 41), this agreement never entered into effect. 

TEXT 

A. PRISONERS OF WAR 

I. Internment in a Neutral Country or Repatriation of 

Prisoners of War 
1. valid prisoners of war 
ARTICLE 1. Valid prisoners of war who have been in captivity for one year, 
except as otherwise specifically provided in articles 2, 3 and 16 shall be 
repatriated on the basis of head for head and rank for rank. 

On the same basis prisoners of war who have been interned in a neutral 
country because of invalidism and have been declared cured and valid by a 
neutral medical commission, shall be repatriated when they shall have been in 
captivity and interned in a neutral country, both combined, for a period of one 
year. 



116 



In the execution of this article the following shall be deemed to be of equal 
rank: 

(a) all general, flag, field and commanding officers; 

(b) all other officers; 

(c) all non-commissioned and petty officers; 

(d) all other enlisted or enrolled persons. 

Art. 2. The personnel of the German war vessels who were interned in the 
United States or its possessions prior to April 6, 1917, who are now held as 
prisoners of war, and who have no claim because of invalidism to repatriation, 
shall be exchanged, as soon as possible after this agreement goes into force 
for an equal number of American prisoners of war, whether the latter have 
been in confinement for a year or not, on a basis of head for head and rank for 
rank. In the execution of this article the following shall be deemed to be of 
equal rank: 

(a) all officers; 

(b) all non-commissioned officers, petty officers and men. 

Art. 3. Prisoners of war who have completed their fortieth (40th) year of 
age and who, although eligible for repatriation on the basis of rank for rank 
and head for head as established in article 1, cannot be repatriated because of 
the inequality in the numbers of such prisoners of war held by the two parties, 
shall be interned in a neutral country. They may be repatriated as soon as 
conditions as to equality in the number of prisoners of war held by the two 
parties shall render possible an exchange on the basis of article 1. 

2. INVALID PRISONERS OF WAR 

Art. 4. Prisoners of war shall be directly repatriated without regard to 
rank or number if they suffer from infirmities or diseases of the kinds 
specified in Annex 1, Sections 1(a), 2(a), and 3. 

Art. 5. Prisoners of war shall be interned in a neutral country without 
regard to rank or number if they suffer from infirmities or diseases of the 
kinds specified in Annex 1, Sections Kb), 2(b) and 3. 

Art. 6. Prisoners of war who do not suffer from the disabilities or diseases 
of the kind specified in Annex 1 may be repatriated or interned in a neutral 
country when their condition of health in other respects appears to the 
Travelling Commissions or Commission of Control to render this necessary. 

Art. 7. The cause of the infirmity or disease shall not be taken into 
consideration in determining the eligibility for repatriation or internment of 
prisoners of war on the ground of invalidism except when self-inflicted 
injuries are involved. 

Art. 8. For the purpose of determining what prisoners of war are entitled 
to repatriation or to internment according to articles 4, 5 and 6, on account of 
invalidism, the prison camps are to be visited by medical commissions 
(Travelling Commissions). 

Each Travelling Commission shall consist of one neutral physician and one 
physician of the Captor State. In the case of a difference of opinion the 
decision shall rest with the neutral physician. The Travelling Commissions 
may be composed exclusively of physicians of the Captor State, provided the 



117 

State of Origin requests it through the Protecting Power. 

At the request of the Protecting Power Travelling Commissions shall be 
allow T ed to make recommendations in regard to the medical care of the 
prisoners and the hygienic conditions of the camps. 

One of the Travelling Commissions, the number of which is to be in 
proportion to the number of prisoners held by each State, shall visit each 
camp every two months. 

Art. 9. There shall be brought before the Travelling Commissions all 
prisoners of war who have been proposed for repatriation or internment in a 
neutral country: 

(a) by the camp physician in a list prepared by him; 

(b) by the State of Origin to the Government of the Captor State; 

(c) by the Camp Help Committee; 

(d ) by the head of a hospital not under the authority of a Camp 
Commandant or by any other person in independent charge of 
prisoners. 

In order to carry out the provisions mentioned in paragraph 1, sub-section 
(c), the Camp Help Committee shall be allowed to prepare each month a list of 
prisoners of war in or belonging to the camp, which list is to be handed to the 
Camp Commandant. 

All prisoners of war in conn* nment within or without the camp shall receive 
consideration by all authorities concerned in the proposals for examination. 
The Camp Commandant shall keep a current list of all prisoners of war in 
confinement which shall be copied monthly by the Camp Help Committee. 
Copies of the lists which have been prepared by the camp physicians and by 
the Camp Help Committees shall be kept in the custody of the Camp 
Commandants. 

The lists of prisoners of war named by the State of Origin shall be handed to 
the Travelling Commissions. 

Art. 10. The representative of the Camp Help Committee with each 
working detachment shall transmit every month to the Commandant and to 
the Camp Help Committee of his own camp duplicate lists showing the names 
of all men from the camp in his working detachment and also showing in 
regard to each man named thereon: 

(a) whether in the representative's opinion, he should be examined 
by the Travelling Commission; 

(b ) whether the man himself desires to be examined; or 

(c) whether he neither needs to be nor desires to be examined. 
These lists are to be submitted with the greatest possible despatch. 
Art. 11. The Travelling Commissions, on their arrival in each camp and 

before beginning examinations, shall inspect the lists in the custody of the 
Camp Commandant and compare them with the lists in their own possession. 

Should a prisoner of war whose name appears on one of the lists have been 
transferred to another prison camp before the arrival of the Travelling 
Commission, or should a prisoner of war be in confinement outside of the 
camp and request of the proper authorities of his parent camp or of his Camp 



118 

Help Committee an examination by a Travelling Commission, the 
Commission shall be so informed. The Commission shall transmit the names 
of any such prisoners to a central authority designated by the Captor State, 
which authority shall arrange in every case for the examination of all such 
prisoners of war by one of the Travelling Commissions. 

Art. 12. When visits are to be made by Travelling Commissions to 
prisoners of war in zones barred for military reasons, arrangements therefor 
compatible with military necessities shall immediately be made by the 
competent military authorities. If for military reasons such visits are 
impossible for a period of thirty (30) days, the prisoners of war shall, for the 
purpose of presentation to the Travelling Commission, be brought to a 
locality accessible to the commission. 

Art. 13. The adverse decisions of the Travelling Commissions shall be 
communicated to the State of Origin, together with the reasons therefor, and 
the name of the agency which proposed the prisoner of war for repatriation or 
internment. 

Art. 14. In cases which have been recognized as urgent by the medical 
officers of the Captor State because of the serious nature of the infirmity or 
disease of the prisoner of war, the repatriation or internment in a neutral 
country shall take place at once without waiting for a visit from the Travelling 
Commission. 

Art. 15. Prisoners of war who have been found by the Travelling 
Commission to be eligible for repatriation or for internment shall be 
examined by a Commission of Control whose decision shall be final. The 
Commission of Control shall consist of three physicians of a neutral country 
and three physicians of the Captor State. In case of a tie vote, the vote of the 
senior neutral physician shall be decisive. 

The provisions of Article 13 shall apply to the adverse decisions of the 
Commission of Control. 

Prisoners of war who have been recognized by the Commission of Control 
as entitled to repatriation or internment shall be repatriated or interned in a 
neutral country with the least possible delay. 

3. GENERAL PROVISIONS 

Art. 16. Valid submarine personnel who have been in captivity for a period 
of not less than twelve (12) months and who might otherwise be entitled to 
repatriation under this agreement shall in lieu of repatriation be interned in a 
neutral country until the conclusion of peace, anything in this agreement to 
the contrary notwithstanding. Invalid submarine personnel shall be 
repatriated or interned as provided in this agreement for other invalid 
prisoners of war. 

Art. 17. The order of priority for internment in a neutral country and for 
repatriation shall be determined in accordance with the principles stated in 
article 175. 

Art. 18. Prisoners of war eligible for internment in a neutral country or for 
repatriation, under articles 1 to 7 inclusive, and 16, may renounce their rights 
thereto, in which case a written declaration of the fact must be made. 



119 

In doubtful cases either of the two Governments may request confirmation 
of the renunciation through a representative of the Protecting Power, or, in 
the case of prisoners of war interned in a neutral country, through the 
government of the latter country. 

Art. 19. Prisoners of war interned in a neutral country shall not be 
repatriated unless they become eligible for repatriation: 

(a) Under the provisions of Annex 1; or 

(b) Under the provisions of articles 1, 3 or 6. 

Before their repatriation their names shall be reported by the competent 
auhorities of the neutral country to the Government of the Captor State. 

The decision relating to the repatriation of prisoners of war from a neutral 
country under this article shall be made by neutral examining commissions. 
The neutral Government is to be requested to arrange examinations 
accordingly every three months or oftener if necessary in special cases. 

Art. 20. If prisoners of war eligible for internment in a neutral country or 
repatriation are awaiting trial, they may be detained until the completion of 
the trial, and, with the limitation provided in the following paragraph, until 
the expiration of the sentence if any. 

If prisoners of war eligible for internment in a neutral country or 
repatriation have not yet begun or have not completely served a sentence 
imposed upon them, they may be detained until they have completed their 
punishment, but not longer than two months from the day on which they 
would otherwise have been interned or repatriated. 

This provision does not apply to prisoners of war who are to be transported 
over seas and the unexpired portion of whose sentences does not exceed two 
months. In such cases the prisoners of war shall not be detained, but they 
shall be sent on the next available transport. 

When a prisoner of war is detained under either of the above provisions, 
the Government of the State of Origin shall be advised by the Government of 
the Captor State of the reason for detention and, in case of punishment, of the 
length of the sentence and of the unexpired portion thereof. 

The provisions of this article do not apply to those cases in which a neutral 
Government refuses to receive for internment a prisoner of war who has been 
sentenced on account of a grave offense. 

Art. 21. Prisoners of war who have been repatriated under the terms of 
this agreement shall be excluded from service in units normally used in 
combat against the enemy on water or land or in the air in the forces of the 
Contracting Parties or of any of their allies or co-belligerents. 

Cases of infringement of the provisions in the above paragraph brought to 
the attention of the State of Origin by the corresponding Protecting Power 
shall be investigated by the former and proper redress made therefor without 
delay. 

Art. 22. Prisoners of war who are to be interned in a neutral country or 
repatriated may take their personal belongings with them, including moneys 
in their possession, or held for them or due them on any account, subject to 
the following limitations: 



120 

(a) All export regulations must be complied with. Nevertheless a 
prisoner of war may, except as provided in subsection (c), take with him 
clothing and personal effects which he possessed at the time of capture or 
which were sent him from abroad for his personal use while a prisoner. 
He may also take with him the articles in the third paragraph of Article 
28. 

(b) Prisoners of war may take with them written or printed matter 
only in case circumstances permit examination by the censor. This 
restriction is not applicable to birth, baptismal, or marriage certificates, 
or to commissions and other personal official papers. 

(c) The total weight of the baggage which may be taken shall not 
exceed fifty kilograms, exclusive of hand baggage. An equalization of 
weights over and under the authorized limit shall be permitted among 
different persons of the same party. This limit of fifty kilograms is not to 
apply to persons going overseas; on the contrary, such persons may take 
as much baggage with them as can be transported without difficulty. 

A certificate shall be furnished for articles retained, and care shall be taken 
to insure their safe-keeping. 

II. Treatment of Prisoners of War 

1. GENERAL PROVISIONS 

Art. 23. The treatment of prisoners of war shall follow the principles laid 
down in international agreements. In particular they are to be protected from 
acts of violence, ill-treatment, cruelties, personal insults and from public 
curiosity, and are to be treated humanely. Instructions to this effect shall be 
given to the authorities entrusted with the care of prisoners of war. 

Officer prisoners of war shall be treated with the courtesy and con- 
sideration which their rank and grade require. 

Art. 24. Prisoners of war shall not be quartered nor worked with nor 
treated as criminals except as punishment for crime of which they have been 
convicted by due process of law. 

Art. 25. Compulsory measures of any kind to make prisoners of war give 
information about their army, navy or State, or about those of their co- 
belligerents, are strictly forbidden. Prisoners of war who decline to give 
information shall neither be threatened nor insulted, nor exposed to any 
other treatment which will put them in a position less favorable than other 
prisoners of war. 

Art. 26. In general, prisoners of war shall be allowed to talk with one 
another. 

Art. 27. Prisoners of war shall be permitted to retain the clothing 
necessary for their personal use provided that no objections exist on hygienic 
grounds. 

Art. 28. Prisoners of war shall not be deprived of their money except on 
command of an officer, and then only when conditions permit a proper receipt 
to be given. Their paper and silver money may not be changed without their 
consent, and if changed it shall be only at the fixed rate of one mark for one 
franc or six marks for one dollar. 



121 

Money taken from a prisoner of war must be credited to him and a receipt 
given therefor. 

Objects of value, such as rings, watches, cigar and cigarette cases, etc., as 
well as insignia of rank and decorations may not be taken from prisoners of 
war. 

The confiscation of personal papers belonging to prisoners of war is strictly 
forbidden. The Captor State may make a copy of such papers, in which case 
the papers must be given back within two weeks at the latest. 

Art. 29. Dogs shall not be used as guards in the interior of prison camps nor 
in guarding working or exercise detachments, unless they are in leash or are 
securely muzzled. Unmuzzled dogs shall under no circumstances be used in 
tracking down escaped prisoners of war. 

Art. 30. Prisoners of war shall accord to the members of the armed forces 
of the Captor State its prescribed military courtesies. Regulations in the 
language of the State of Origin prescribing such courtesies shall be kept 
posted in a conspicuous place, accessible to the prisoners of war, and no 
prisoner of war shall be punished for failing to accord any military courtesy 
not specified in the regulations so posted. 

Art. 31. All female personnel serving with the armed forces of either of the 
Contracting Parties, shall, if captured, be given every possible protection 
against harsh treatment, insult or any manifestation of disrespect in any way 
related to their sex. They shall be suitably and decently quartered, and 
provided with lavatories, bathing facilities, and other similar necessities 
quite separate from those provided for males. 

2. PROTECTION AFTER CAPTURE 

Art. 32. Prisoners of war shall be sent back as soon as possible after 
capture to collecting camps, which shall be at least 30 kilometers from the 
front line of the Captor State. In no case shall prisoners of war be kept nearer 
to the front line than 30 kilometers, unless on account of wounds or sickness 
they would incur greater danger by being moved than by remaining. 

Seriously wounded prisoners of war shall be given competent medical care 
without delay and as soon as circumstances permit, shall be removed to a 
hospital. 

Art. 33. In so far as practicable prisoners of war shall be grouped in camps, 
working detachments, and quarters with prisoners of war of the same State 
of Origin; and prisoners of war other than officers shall, whenever possible, 
be assigned to a camp containing at least 100 men from their own State of 
Origin. 

Every prisoner of war not an officer shall be assigned to a prisoner of war 
camp having a Camp Help Committee composed of prisoners of war of his own 
State of Origin and he shall be informed of this assignment. 

Art. 34. Special camps for non-commissioned officers shall not be 
established. 

3. NOTIFICATION OF CAPTURE 
Art. 35. The name, individual number, rank or rating and military or naval 



122 

organization of every prisoner of war shall be notified within one month of 
capture to the competent authorities of the Captor State and be transmitted 
as soon as possible to the State of Origin. 

Art. 36. The Contracting Parties will do all in their power to insure that 
news in regard to the location of prisoners of war or missing belligerents shall 
be telegraphed to the State of Origin through the intermediary of the 
designed at Relief Societies. 

The following are the designated Relief Societies: 

(a) For the United States of America: American Red Cross, 
Berne, Switzerland 

(b ) For Germany: The Frankfort Red Cross, Committee for German 
Prisoners of War, Telegraphic Address: 
Gefangenenhilfe-Frankfurtmain. 

Art. 37. Prisoners of war may send to their families within one week after 
capture a printed post card containing the news of their capture and 
information regarding their state of health. 

Prisoners of war may within three days after assignment to a prison camp 
communicate to their families by means of a printed post card the address at 
which letters, post cards, remittances and parcels may be sent them. This 
provision shall also apply to all cases where prisoners of war are transferred 
from one prison camp to another. 

The communications mentioned in the two preceding paragraphs, for 
which the necessary writing material is to be furnished to prisoners of war by 
the Captor State, shall be forwarded as quickly as possible and without delay; 
they shall not be counted in the authorized maximum of letters and post 
cards. 

In the case of American prisoners of war these communications shall be 
addressed in care of the American Red Cross, Berne, Switzerland. 

4. EQUIPMENT AND ORGANIZATION OF CAMPS 

Art. 38. Quarters provided for troops of the Captor State shall form in 
hygienic as well as other respects the standard for the housing of prisoners of 
war in prisoner of war camps. The points mentioned in Annex 2 in regard to 
camps for officers and in Annex 3 in regard to camps for prisoners other than 
officers represent minimum requirements below which equipment and 
organization in the camps shall not fall. To whatever extent local conditions 
allow, the minimum requirements prescribed for main camps for prisoners 
other than officers shall be applicable to working detachments; and in all 
instances irrespective of local or other conditions the minimum requirements 
as to clothing, equipment and blankets, as stipulated in Annex 3, shall at least 
be met. 

Prisoners of war shall be protected against the inclemencies of the weather 
to the same extent as members of the armed forces of the Captor State. 

Art. 39. The minimum requirements must be fulfilled within three months 
at most after this agreement goes into force, unless new buildings or changes 
in buildings are necessary. In such cases a further delay of six weeks is 
permissible. 



123 

Art. 40. In camps for officers, the senior officer prisoner of war, and in 
camps for prisoners of war other than officers, the senior in rank on the Camp 
Help Committee, shall have the right to inform the diplomatic representative 
of the Protecting Power as to whether the minimum requirements have 
actually been complied with. This information may be given at any time after 
the expiration of the period for which provision is made in Article 39. 

The reports shall be handed to the Camp Commandant and shall be 
forwarded by the latter through official channels to the diplomatic 
representative of the Protecting Power, together with such comments as 
appear appropriate and necessary. 

If the Camp Commandant considers the report unfounded, the 
Government of the Captor State shall request the diplomatic representative 
of the Protecting Power to send a delegate to the camp immediately. The 
report of such delegate is to be communicated to the Governments of the 
Captor State and of the State of Origin. 

5. WORK 

Art. 41. The Captor State may utilize the labor of prisoners of war, officer 
prisoners of war excepted, according to their grade and rating, aptitude and 
physical ability. 

Art. 42. Prisoners of war shall neither be required to perform, nor by 
menaces, threats or force coerced into volunteering to perform, any work 
directly related to the operations of the war. 

Neither Contracting Party shall utilize prisoners of war of the other for 
work in mines, marshes, munition factories, or for dangerous work in 
quarries. 

Art. 43. Prisoners of war may be employed only at a distance of at least 
thirty kilometers from the front line of the Captor State. 

Art. 44. Prisoners of war subject to compulsory work under the provisions 
of this agreement may be required to work for the public service of the Captor 
State, or for private persons or private corporate interests, or they may be 
authorized to work on their own account. 

All work performed by prisoners of war shall be under the supervision of 
the Captor State. The Captor State shall retain full obligation and 
responsibility for the proper care, maintenance, pay and treatment of all 
prisoners of war who may be hired out to work for private persons or private 
corporate interests. 

Art. 45. Prisoners of war shall not be worked longer hours than the civil 
population engaged in similar work in the same locality and except in cases of 
emergency the working day shall not be longer than ten hours, including 
whatever time is consumed in passing to and from work. 

An interval of one hour, which will not be counted as working time, shall be 
allowed for the mid-day meal. Adequate time and opportunity for attending to 
calls of nature shall be given. 

Art. 46. Prisoners of war who work shall be allowed one full day's rest of 24 
hours in each seven days; this rest day shall be the calendar Sunday whenever 
practicable. When, however, emergency conditions require work on Sunday, 



124 

the day of rest shall be accorded as soon as practicable thereafter and in no 
event shall the interval between successive rest days be longer than nine days 
nor shall there be more than one such nine-day interval in each 30 days. 

Art. 47. When prisoners of war, from the nature of their work, are 
exposed to dangers or sickness, special preventive measures shall be taken. 

Art. 48. Prisoners of war shall be classified by the attending medical officer 
according to their ability to work without injury to their health in the 
following categories: 

(a) heavy work, 

(b) light work, 

( c) no physical work, 

(d) sick — no work. 

Classified lists, certified by the medical officer, shall be kept by the camp 
authorities. Where circumstances require, as for instance transfer from one 
camp to another, prisoners of war shall be accompanied by a certificate 
showing their classification for work. 

Art. 49. The following prisoners of war are exempted from all forms of 
compulsory work: 

(a) Aviation cadets, officer candidates, field clerks, and other 
appointed officers of the American army and navy; 

(b) "Offizier-Stellvertreter" and "Beamtenstellvertreter" and 
"Faehnriche" of the German army and the German navy, 
"Deckoffiziere," "Vice-Deckoffiziere," and "Hilfs-Deckoffiziere" 
of the German navy. 

Art. 50. American non-commissioned officers and naval petty officers and 
German Unteroffiziere and Offiziersanwaerter, except those mentioned in 
Article 49, are exempted from compulsory work, except: 

(a) For the supervision of prisoners of war of their own armed forces 
while at work. 

(b) For checking and distributing mail matter and packages. 

(c) For clerical work. 

(d) For work which is absolutely necessary for the maintenance of the 
camp or the prisoners of war (e.g. work in gardens or kitchens) as 
far as this work is compatible with the dignity of their rank and is 
entirely within the enclosure of the camp. 

In no case, however, shall non-commissioned officers be used for menial or 
dirty work, such as the loading and transport of coal, or the cleaning of streets 
or latrines. 

Art. 51. Prisoners of war shall receive no compensation for work done for 
their own benefit or in connection with the maintenance or administration of 
their camp, their quarters or their work shop. Other work for the Captor 
State shall be paid for at a daily rate of not less than 50 Pfennigs or 12V2 Cents 
nor more than 2 Marks or 50 Cents. 

Prisoners of war shall be paid for work done in industrial occupations for 
private persons or firms at the same rate as industrial workers in the same 
locality for the same sort of work. Of the wages earned in this manner 25 to 50 



125 

Cents or 1 Mark to 2 Marks per day shall be credited to the prisoner of war 
concerned. The remainder shall be retained by the Captor State. Prisoners of 
war engaged in agricultural labor shall receive a daily wage of 50 Pfennigs or 
12V2 Cents which shall be credited to them without any deduction. 

No deductions for maintenance shall be made from the net portion of their 
earnings but the full amount shall be credited to the prisoners of war and 
placed at their disposal for the purchase in accordance with camp regulations 
of articles needed by them. 

The net balance remaining to the credit of prisoners of war shall be paid 
them upon their internment in a neutral country or upon their repatriation; in 
case of death of a prisoner of war this balance shall be paid to the diplomatic 
representative of the Protecting Power for the benefit of the legal heirs of the 
deceased. 

6. RATIONS 

Art. 52. It is the obligation of the Captor State to provide prisoners of war 
under its charge with such quantity and quality of wholesome food, especially 
of meat and vegetables, as is necessary to maintain unimpaired their normal 
physical health and working capacity. In general the ration served to 
prisoners of war shall be equal in amount, quality and nutritive value to that 
served to the armed forces of the Captor State when in barracks or in 
cantonments. 

The food value of their daily ration shall not fall below a minimum of 
2,000 calories for non- workers, 
2,500 calories for ordinary workers, 
2,850 calories for heavy workers. 

The daily ration of bread shall in no case be less than 250 grams, and in the 
case of ordinary workers this ration shall be increased by the addition of 100 
grams; and in the case of heavy workers by the addition of 150 grams of bread 
or other cereals; furthermore each prisoner of war's daily food ration shall 
contain amounts of fresh vegetables, fresh meat, and animal fat not less than 
those furnished to the guards at the same camp or place of detention. 

All food furnished shall be sound and wholesome and shall have been 
handled in a proper manner. 

An abundant supply of safely potable water, amounting to at least 3 litres 
per man per day shall be provided for drinking purposes for all prisoners of 
war. 

Art. 53. Officer prisoners of war shall be permitted and, as far as possible, 
encouraged to manage their own messes; and at their request the rations 
furnished by the Captor State shall be delivered to them uncooked. 

Prisoners of war shall be permitted to utilize the food contents of their 
parcels in common as additional ration. The necessary facilities for this shall 
be arranged with the Camp Commandant by a committee chosen by the 
officers in officer camps, and by the Camp Help Committee in camps for 
prisoners of war other than officers. 

Art. 54. Menus specifying the weight of each article provided per man per 
day shall be posted daily and shall at all times be accessible to the delegate of 



126 

the Protecting Power. 

Art. 55. Prisoners of war shall be allowed at all times to obtain hot water at 
a reasonable price, not to exceed 5 centimes or 5 pfennigs for 2 litres. 

Art. 56. Camp Help Committees shall be given a hearing in cases of 
complaints made by prisoners of war about their food. 

Art. 57. In camps where there are prisoners of war of different States of 
Origin, the Camp Commandant shall, as far as possible, permit the cooking 
for the prisoners of war to be done by cooks of their State of Origin. 

The camp cooks shall be permitted to prepare the food according to the 
taste of the prisoners of war. 

Art. 58. When necessary for the preparation of the contents of packages, 
special kitchen facilities and fuel shall be furnished prisoners of war by the 
Captor State. Members of the Camp Help Committee shall be permitted to 
enter the kitchens. 

Art. 59. In all camps for prisoners of war canteens shall be maintained in 
which prisoners may buy at reasonable prices currently obtainable food and 
articles of daily use. Camp Help Committees shall co-operate in the 
management of the canteens. Price lists of articles for sale, in the language of 
the prisoners of war, shall be kept posted in a conspicuous place. The profits 
made may be used only for the benefit of the prisoners of war. 

Art. 60. All officers, non-commissioned officers and men not employed on 
work outside the camp enclosure shall be permitted to take weekly walks of 
not less than two hours under military supervision outside the camp 
enclosure. If the prisoners of war so desire and local conditions permit, these 
walks shall be taken to a point at least four kilometers distant from the camp. 

For this purpose, officer prisoners of war shall give their paroles not to 
make or prepare an attempt to escape during the walks, nor to do anything 
during this time which may be directed against the Captor State, its allies or 
co-belligerents. Such paroles shall be binding only for the duration of the walk 
for which given and on such conditions military supervision will be limited to 
conducting the walks. 

8. INTELLECTUAL OCCUPATION AND DIVINE SERVICES 

Art. 61. Prisoners of war shall be given as much opportunity as possible for 
intellectual occupation and development. For this purpose it is agreed as 
follows: 

(a) In every main camp and as far as possible in every working 
detachment a reading and workroom sufficiently lighted and heated shall 
be provided and put at the disposal of the prisoners of war. 

(b) Properly qualified prisoners of way may give educational courses 
and lectures which shall be so arranged as not to interfere with the work 
of the prisoners of war. 

(c) The formation of camp libraries is to be encouraged in every way. 
Prisoners of war may have such newspapers of the Captor State or of its 
co-belligerents as the former may choose. Prisoners of war in working 
detachments shall be given every opportunity to make use of the 
libraries of the main camps. The exchange of books between the various 



127 

camps shall be accomplished through the military authorities. The use of 
text books, dictionaries and bound books shall be permitted. 

(d) Prisoners of war charged with giving educational courses or 
lectures and the management of libraries are to be exempt from work in 
the camps and are to be transferred to another camp only in cases of 
urgent necessity. 

(e) As far as possible, prisoners of war shall be permitted to complete 
the courses they are attending. 

(f) Prisoners of war shall be given opportunities to arrange and give 
musical and theatrical performances and similar entertainments. 

Art. 62. Prisoners of war shall enjoy complete liberty in the exercise of 
whatever religion they may profess. 

Chaplains pending repatriation under Article 140, shall be allowed to 
perform their religious and professional duties among the prisoners of war. 
Similar opportunities shall be given to prisoners of war who are ministers of 
religion and they shall be exempted from such work as will interfere with 
their religious duties. 

9. MEDICAL TREATMENT 

Art. 63. Prisoners of war shall be given the same medical and dental care 
and treatment and diet as are provided by the Captor State for sick of like 
grades in its own armed forces. 

In case of a shortage of military doctors, competent civilian doctors shall be 
provided. 

The services of such prisoners of war as are dentists and are not repatriated 
as members of the Sanitary Personnel, shall be utilized. 

In no case shall any charge be made against a prisoner of war for medical or 
dental treatment, or supplies or anesthetics. 

Art. 64. Prisoners of war shall be protected against sickness to the same 
extent as the nationals of the Captor State; and especially against those 
diseases that are conveyed by infection through the respiratory and the 
alimentary tracts, by transmission through the agency of insects, by contact 
and by poisons, etc. 

Art. 65. Artificial limbs, sticks, crutches, false teeth and all other surgical 
and medical appliances necessary for the well-being of prisoners of war shall 
be furnished by the Captor State, reimbursement therefor to be made by the 
State of Origin. Such further appliances as may be furnished to prisoners of 
war by the representative of the Protecting Power shall not be withheld by 
the Captor State. 

Art. 66. If the Captor State is unable to furnish any of the medicines or 
medical supplies necessary for the treatment of the sick or wounded prisoners 
of war it shall notify the Protecting Power, and shall allow such medical 
supplies to be furnished and shall expedite their transportation and delivery 
to the Camp Help Committees at the camps for which they were requested. 

The same applies to articles of specified kinds whose delivery has been 
recommended by the Travelling Commissions, or by a delegate of the 
Protecting Power. The distribution of these articles among the prisoners of 



128 

war in any main camp and in the working detachments belonging thereto shall 
be made through the Camp Help Committee of the camp and under the 
direction of the camp doctor. 

Art. 67. In every prisoner of war camp a sick call shall be held daily at a 
specified hour in the presence of a medical officer at which prisoners of war 
may attend and receive medical attention from him. 

Art. 68. Prisoners of war other than officers shall be detailed as orderly 
assistants to the medical officers of the camps in the proportion of not less 
than one for every one hundred prisoners of war in the camp, but there shall 
not be less than two such orderlies in any camp. Such orderlies shall perform 
no other duties. 

Art. 69. In hospitals, correspondence and parcels shall be delivered 
without delay, but the use of the contents of the latter shall be under the 
control of the medical officer in charge. 

10. PUNISHMENT OF PRISONERS OF WAR 

Art. 70. Prisoners of war shall be subject to the laws, regulations, and 
orders in force in the armed forces of the Captor State, except as otherwise 
expressly provided in this Agreement. 

Art. 71. All proceedings against prisoners of war whether before military 
or civil tribunals shall be accelerated as much as the ends of justice demand 
and the nature of the case permits. 

Art. 72. No punishments other than those provided by the laws of the 
Captor State for the personnel of its own armed forces shall be inflicted upon 
prisoners of war by the military authorities, or military tribunals. 

Art. 73. For refusal to work and other infractions of discipline suitable and 
adequate punishment may be inflicted upon guilty prisoners of war by the 
camp authorities or by the military tribunals, as the case may be. In no case, 
however, shall the punishment inflicted be more severe in nature or degree 
than the punishment legally assignable to a member of the armed forces of the 
Captor State for the same or a like offense. 

Art. 74. Punishments which may be inflicted by a Camp Commandant or 
under military authority other than the tribunals established pursuant to law 
shall be limited to the following: 

(a) For Officers: Deprivation of privileges; retention of pay; 
reprimand; confinement to room. 

(b) For non-commissioned officers, petty officers, and men: 
Deprivation of privileges; retention of working pay; assignment to 
fatigue, and extra duties in addition to routine work by roster; 
confinement in a cell. 

The pay of officers and the working pay of non-commissioned officers and 
men so retained as a measure of disciplinary punishment shall be credited to 
their respective accounts and shall be paid to them upon their release from 
the status of prisoner of war. Under all circumstances the necessary money to 
pay their mess bills shall be allowed to officer prisoners of war. 

Art. 75. Physical violence or maltreatment, either mental or physical, 
shall neither be inflicted as a disciplinary punishment nor permitted to a 



129 



subordinate as extra-legal measures of punishment or suppression of 
prisoners of war. The right is expressly reserved to the authorities of the 
Captor State, however, to take such measures as may be indispensable for 
the suppression of riot or concerted or group insubordination or mutiny on the 
part of prisoners of war, such measures to be always within the bounds of 
humanity. 

Prisoners of war shall not be subjected to extreme heat or cold. 

Marching with full equipment and other aggravations of punishments are 
forbidden. 

Art. 76. Immediately after charges calling for a trial before a court are 
preferred against a prisoner, the Captor State shall notify the Protecting 
Power thereof. This notification shall be at least three weeks before the day 
set for the trial and shall contain: 

(a) The full name and rank of the prisoner of war. 

(b) The location of the prisoner of war or his place of detention. 

(c) A short statement of the criminal act charged, accompanied by a 
statement of its legal consequences. 

(d) The name of the tribunal before which he will be tried with exact 
information regarding the place and date of trial, including the 
street and number of the premises where the trial is to take place. 

The notification provided for in the preceding paragraph may be omitted in 
cases before inferior courts provided the authorized limit of punishment for 
the offense with which the prisoner of war is charged does not exceed 
confinement for a period of three months. 

Art. 77. In the cases mentioned in Article 76 as requiring formal 
notification to the Protecting Power, the accused prisoner of war shall have 
the right, unless prohibited by law, to be represented by legal counsel able to 
speak his own language; of which right he shall be defiinitely informed by the 
Captor State reasonably in advance of trial. The Protecting Power shall have 
the right to appoint counsel for the accused. In such cases and in all other 
cases where counsel is required by law or appears essential, the Captor State 
shall furnish the Protecting Power a list of the persons who may act as 
counsel, and shall notify the latter that counsel will be selected therefrom 
unless the Protecting Power shall have chosen counsel two weeks after 
receipt of this list. 

In all cases where formal notification is not required the accused shall be 
assisted in defence by counsel whenever reasonable and compatible with law; 
otherwise he shall be assisted by an interpreter. 

The right of the accused freely to consult with his counsel shall not be 
denied nor unreasonably abridged. 

The representative of the Protecting Power shall have the right to send a 
representative to attend the public sessions of the trial even though it shall 
not have designated a counsel to represent the accused as aforesaid. 

Art. 78. The accused shall not be compelled to be a witness against himself, 
but he may, if he wishes, present to the tribunal arguments, either oral or 



130 

written, in support of his cause. 

With a view to shortening the time of confinement awaiting trial, the 
judicial proceedings shall be expedited. The period of confinement awaiting 
trial may be considered in whole or in part in imposing sentence. 

Art. 79. Any sentences unexpired at the time this agreement goes into 
effect in excess of the limitations therein imposed shall be at once remitted. 

Art. 80. A prisoner of war shall have the same right of appeal to higher 
authority, judicial or executive, as that possessed by members of the armed 
forces of the Captor State in similar cases. 

Art. 81. In cases in which the death sentence is imposed by a military 
tribunal upon a prisoner of war, a statement showing in detail the character 
and circumstances of the offense shall be promptly communicated to the 
Protecting Power for transmission to the State of Origin of the prisoner of 
war concerned, and the execution of the sentence shall be delayed for a period 
of at least three months counting from the date of this communication. Such 
sentences may be pronounced only by tribunals of the same kind and 
following the same procedure as in corresponding cases for members of the 
armed forces of the Captor State. The accused shall have the specific right to 
be represented in the trial by counsel to the same extent as members of the 
armed forces of the Captor State. 

The delay in the execution of the sentence provided in paragraph one of this 
Article is not applicable in those cases in which the death sentence is imposed 
for the offense of murder or attempted murder committed in the zone of 
operations. 

Art. 82. The length of sentence to confinement in a cell or confinement in a 
room which may be imposed by a Camp Commandant or under military 
authority other than the tribunals established pursuant to law, shall not 
exceed thirty (30) days for any single offense. 

If the total of several such consecutive sentences exceeds thirty (30) days, 
an interval of one week, during which no punishment shall be inflicted, shall 
follow each thirty (30) days confinement in a cell. 

Art. 83. The duration of the punishment for a simple attempt to escape on 
the part of prisoners of war, even if repeated, shall not exceed military 
confinement for a period of fourteen days, and if made in concert with other 
prisoners, a period of twenty-eight days. 

The duration of the punishment for such an attempt to escape, combined 
with other punishments for acts consequent upon, or incident to such 
attempt, in respect of property, whether in relation to the appropriation or 
possession thereof, or injury thereto, shall not exceed military confinement 
for a period of two months. 

The foregoing provisions shall apply to attempts to escape from detention 
of any description in the same manner as they apply to attempts to escape 
from ordinary camps. 

Prisoners of war recaptured after an attempt to escape shall not be 
subjected to any unnecessary harshness. Any insult or injury to such 
prisoners of war shall be severely punished. They shall be protected from 



131 

violence of every kind. Officer prisoners of war recaptured after an attempt to 
escape shall continue to be treated in a manner suitable to their grade. 

Art. 84. Collective punishments or deprivations of privileges on account of 
the misconduct of individuals are forbidden. Those collective punishments 
are especially forbidden through which prisoners of war lose their right to 
receive their mail and to send the allowed number of letters and postcards. In 
the case of individuals such a prohibition may be imposed as a punishment but 
shall not exceed two weeks. The prisoner of war has in this case the right to 
notify his family of this stoppage of correspondence before it goes into effect. 

Art. 85. Punishments which are served in the prisoner of war camps and 
military prisons shall be carried out under the conditions provided in Annexes 
4 and 5 of this agreement; otherwise, in the absence of specific provisions, 
prisoners of war undergoing punishment shall be treated as other prisoners of 
war. 

Prisoners of war undergoing confinement in places removed from the 
camps, shall be permitted to receive four parcels a month and to use the food 
contents of these parcels, except upon the days when they are placed on bread 
and water diet. Adequate cooking facilities and fuel shall be provided for 
them. 

Art. 86. At their request prisoners of war in close confinement shall be 
permitted to attend the daily sick call as provided for in Article 67, and they 
shall receive such medical attention and treatment as, in the opinion of the 
attending medical officer, they may require, including removal to hospital 
when necessary. 

Art. 87. The provisions of this agreement shall not apply to prisoners of 
war who through acts of individual misconduct against the law of the land 
have passed from the control of the military to that of the civil authorities. 

11. DEATHS AND ACCIDENTS 

ART. 88. Officially stamped or otherwise authenticated certificates of 
deaths occurring among prisoners of war shall be executed without delay and 
transmitted to the diplomatic representative of the Protecting Power. 

The representative of the Protecting Power shall be notified as quickly as 
possible of deaths by violence, and shall be informed as to the particulars. 

Art. 89. The property of deceased prisoners of war, including 
identification tags, pay-books and other personal papers, shall be despatched 
by the Government of the Captor State to the State of Origin. 

Art. 90. The Contracting Parties shall provide and maintain proper burial 
places for prisoners of war of the other party who are killed or die while in 
captivity. Available information regarding the identity of the deceased shall 
be marked in a clear manner on the grave, and the location of graves shall be 
reported without delay to the State of Origin. 

Deceased prisoners of war shall be accorded the same honors at burial as 
are accorded to persons of the same rank or rating in the armed forces of the 
Captor State. 

Art. 91. Each Government shall take measures that information regarding 
the death or whereabouts of missing nationals of the other party be gathered 



132 



and forwarded as rapidly as possible to the State of Origin. 

Art. 92. A statement shall be immediately prepared concerning all 
accidents to prisoners of war, to which a brief medical report must be 
appended. In such cases the prisoner of war shall be furnished a certificate by 
the Camp Commandant, stating the nature of the injury. The certificate shall 
be deposited with the papers of the prisoner of war and shall be handed him on 
his discharge or, in case of internment in a neutral country, shall be 
transmitted for safe keeping to the government of this neutral country and be 
given him on his repatriation. 

12. EXCHANGE OF POWERS OF ATTORNEY AND WILLS 

Art. 93. Prisoners of war shall be permitted to execute and have attested, 
in accordance with special regulations to be issued on the subject by the 
Captor State, powers of attorney and wills, which may be written in their 
own handwriting or sent them from their States of Origin, or drawn up for 
them in the camp by third parties. The camp authorities shall be responsible 
for forwarding such papers as quickly as possible to the diplomatic 
representative of the Protecting Power. 

13. HELP COMMITTEES 

Art. 94. A Camp Help Committee freely chosen by the prisoners of war 
shall be formed in each camp, including quarantine and distributing camps. 
This choice is subject to the approval of the Camp Commandant. 

Camp Help Committees shall consist of at least: 

1 member in camps of from 1 to 50 men. 

2 members in camps of from 51 to 100 men. 

3 members in camps of from 101 to 500 men. 

5 members in camps of from 501 to 1,000 men. 

In camps of more than 1,000 men there shall be one representative for 
every additional 500 men. In computing the membership of Camp Help 
Committees, the prisoners assigned or attached to a camp shall be counted 
even though they be absent from camp. Similarly in every working 
detachment representatives in the same ratio as provided above shall be 
chosen to be the correspondent or correspondents of the Camp Help 
Committee of the camp to which the working detachment is assigned. 

In each hospital having ten or more prisoners of war of the same State of 
Origin representatives may be chosen in the proportion prescribed above for 
working detachments. Their duties and privileges shall be the same as those 
prescribed in this agreement for the representatives of working detach- 
ments. 

Art. 95. Camp Help Committees and representatives besides exercising 
the functions enumerated elsewhere in this agreement, shall co-operate with 
the camp authorities in all matters relating to prisoners of war, such as 
foundation of libraries and provision of educational facilities; organization of 
amusements; registration of complaints lodged by prisoners of war; receipt, 
registration and distribution of gifts and of relief to prisoners of war 
wherever located; co-operation with the authorized relief societies and with 
the Protecting Power; distribution of contents of parcels of deceased 



133 

prisoners of war and management of postal operations. 

Art. 96. Camp Help Committees shall be allowed each week to copy the 
current lists of prisoners of war undergoing medical treatment and to 
transmit the same to the designated relief societies. 

Art. 97. Camp Help Committees may correspond in matters relating to 
their duties freely and directly with their representatives, with the 
diplomatic representative of the Protecting Power, with the designated relief 
societies and with absent prisoners of war belonging to their Camp who have 
no representative. 

The correspondence of the Camp Help Committee referred to in the 
preceding paragraph shall be subject to censorship by the camp authorities. 
Communications which contain requests or complaints and which are 
addressed to the diplomatic representative of the Protecting Power, shall be 
handed over to the Camp Commandant who shall immediately transmit them 
through official channels. Such communications may be withheld only when 
they contain wilfully false statements or are written in improper language. 
The decision to withhold them rests exclusively with the Ministry of War; in 
the case of German prisoners of war in Europe, with the Headquarters of the 
American Expeditionary Forces. In case a letter is withheld, the writer and 
the diplomatic representative of the Protecting Power must be informed of 
the fact and the reasons. 

The competent military authorities in forwarding these communications 
will endorse thereon their remarks in order that the representative of the 
Protecting Power can upon their receipt form an opinion as to the statements 
contained therein. 

Copies or abstracts of letters sent by the Camp Help Committees shall be 
kept by them and shown upon request to the representative of the Protecting 
Power and to the prisoners of war of their State of Origin. 

Art. 98. Camp Help Committees shall draw up under the supervision of 
Camp Commandants lists of prisoners of war who have had no news of their 
families for at least three months. These lists shall contain the names of the 
prioners of war, the addresses of the families and brief communications or 
enquiries limited to 20 words in telegraphic style. These lists shall be sent to 
the Red Cross Societies of the respective States of Origin mentioned in 
Article 36 which shall attend to forwarding the answers of the families as 
quickly as possible. 

Art. 99. Camp Help Committees, composed of prisoners of war of either of 
the Contracting Parties may render, from supplies at their disposal, 
assistance to prisoners of war of the other States of Origin within the same 
camp. Reciprocally, prisoners of war of the two Contracting Parties may 
receive similar assistance from the Committees composed of the prisoners of 
war of other States of Origin. 

Art. 100. Members of Camp Help Committees and their representatives in 
working detachments shall not be required to perform any work which 
interferes with their duties as such. They shall not be transferred from one 
camp to another except for urgent reasons; and then only after they shall have 



134 

been given opportunity to arrange their affairs in a business-like manner and 
to transfer to their successors the property and accounts in their care. 

Art. 101. Suitable offices and store rooms shall be provided for the use of 
Camp Help Committees. These store rooms shall be fitted with two locks, the 
keys of one to be kept by the Camp Help Committee, those of the other by the 
Camp Commandant. 

Art. 102. Packing boxes or materials used in transporting supplies to 
prisoners of war which are not the property of individual prisoners of war 
shall become the property of the Camp Help Committee for use in repacking 
or other purposes; until then they remain in the custody of the Camp 
Authorities. 

14. CORRESPONDENCE AND PARCELS 

Art. 103. Special attention shall be given to the rapid forwarding of the 
correspondence of prisoners of war, especially over-seas correspondence. 
Camp Commandants and commanders of working detachments shall be 
instructed accordingly. 

The incoming mail for prisoners of war shall be distributed without delay. 
The despatch of accepted letters and postcards shall not be delayed longer 
than ten days. Exceptions shall be permitted only as provided for by Article 
84. 

Art. 104. Letters, postcards, parcels, money and valuables sent to 
prisoners of war, and letters and postcards sent by prisoners of war, shall not 
be subject to charges for postage, delivery, duties, storage or to any other 
charges, either in the country of mailing or destination. 

Similarly, articles sent to prisoners of war as gifts or as relief shipments, 
either in bulk or in collective consignments, shall be free from all custom 
duties, freight charges and other dues or charges. 

Art. 105. Prisoners of war shall be permitted to send two letters and four 
postcards each month. Letters of officers shall not exceed six pages, and 
letters of those of other ranks or ratings shall not exceed four pages. 

The letters and postcards shall be legibly written in black ink or in soft 
black lead pencil and, except with the permission of the Commandant, must 
be in English, French or German. Letters and postcards must be addressed 
specifically to a person, firm or corporation, by name, and not to a mere post 
office or accommodation address. 

Art. 106. Correspondence of prisoners of war must not contain 
information regarding the political or military situation, or other information 
detrimental to the safety of the Captor State. Enclosures may be permitted 
provided they accord with the sense of this Article, it being recognized, 
however, that such enclosures may result in a delay in the despatch of the 
letter. 

Correspondence of prisoners of war which violates the provisions of this 
agreement shall be returned to the writer, unless required as evidence in 
judicial or disciplinary proceedings, and shall be counted in the authorized 
maximum of letters and postcards. 

Art. 107. Prisoners of war may receive and answer enquiries from 



135 

recognized relief societies and information bureaus in regard to the location of 
missing members of the armed forces; the answers are not to be counted in 
the authorized maximum of letters and postcards. 

Art. 108. Prisoners of war shall be allowed to receive an unlimited number 
of parcels; those sent by mail shall not weigh more than seven kilograms each. 
Commandants of Camps and working detachments are forbidden to withhold 
parcels, except in the cases specifically provided for in this agreement. 

Art. 109. The sending of books and pamphlets, as well as bulk shipments of 
writing paper and blank books, shall be allowed subject to examination. 
Books may be bound. 

ART. 110. Parcels addressed to individuals may be despatched in collective 
consignments when packed in such a manner as to be transported by ship and 
by rail without difficulty. 

Individual parcels without specified recipients may also be despatched in 
collective consignments addressed to the Camp Help Committees of the main 
camps. These Committees may distribute the parcels to their repre- 
sentatives or other Camp Help Committees. Such parcels must be clearly 
marked as follows: 

"For distribution to prisoners of war who receive no parcels." 

If an addressee be deceased, the contents of his parcels shall be distributed 
among the prisoners of war by the Camp Help Committee. 

Art. 111. The parcels shall be handed out immediately or, if preferred by 
the prisoners of war, only when asked for. 

The parcels shall be handled so as to prevent injury and shall be examined 
only once, and then in the presence of the addressee or of some one designated 
by him. The containers of perishable foodstuffs shall be kept intact until the 
contents are needed for consumption. 

Art. 112. Every recipient of a parcel shall be permitted to despatch to the 
sender a printed postcard containing only an acknowledgement of the receipt 
an an intemized statement of the contents and of the condition thereof at the 
time of the receipt. In case printed forms for this purpose are not at hand, the 
rceipt may be written but must not contain other information than the printed 
forms. This postcard shall not be counted in the authorized maximum of 
letters and postcards. 

The printed postcards or printed lists, enclosed in parcels or bulk 
shipments stating the contents, shall always be delivered to the addressee. 
They shall be checked against the contents in the presence of the addressee or 
his representative. 

Art. 113. The packings tin containers and boxes shall remain the property 
of the prisoners of war but they shall be stored by the camp authorities until 
required for use. 

Art. 114. Camp Help Committees shall be allowed to make lists of all 
parcels sent to the working detachments that are attached to their main 



136 

camp, and lists of the contents of each parcel; these lists shall accompany the 
parcels. 

Art. 115. Camp Help Committees shall be permitted to make claims for 
loss of parcels or of their contents, or for damage thereto, for all prisoners of 
war in their camps or attached thereto. 

Art. 116. Prisoners of war shall be permitted to transmit to their 
dependents funds in their possession at the time of capture, or paid to them by 
the Captor State. 

Domestic money orders, when permitted shall be subject to the ordinary 
fees. 

Art. 117. All foreign postal traffic under this arrangement shall, with the 
consent of the Swiss Government, be through its postal sevice. 

15. COMMUNICATION WITH THE PROTECTING POWER 

Art. 118. Prisoners of war may at all times communicate in writing to the 
diplomatic representative of the Protecting Power requests or complaints 
concerning treatment or conditions in their camp, or matters of purely 
personal interest; or may present such statements verbally to a delegate of 
the Protecting Power. 

In main camps such written communications shall be presented to the 
Camp Help Committees, and in working detachments to the representatives 
of the detachment, to be transmitted to the Camp Help Committee of the 
main camp. The Camp Help Committee, after having made notations on the 
communication if such are necessary, shall forward it to the Camp 
Commandant, who shall in turn transmit it without delay through official 
channels to the representative of the Protecting Power. 

Further action shall be in accordance with the provisions of Article 97, 
paragraphs 2 and 3. 

Art. 119. The communications addressed to the diplomatic representative 
of the Protecting Power shall not be counted in the authorized maximum of 
letters and postcards. In no case shall written communications addressed by 
prisoners of war to the Camp Commandant and intended only for him be 
counted in the authorized maximum of letters and postcards. 

Art. 120. Prisoners of war may be punished on account of complaints sent 
by them to the Protecting Power only when they contain intentionally 
insulting statements or intentionally false accusations. Punishment may be 
inflicted only by sentence of a court or with the approval of the Ministry of 
War; in the case of German prisoners held in Europe with the approval of the 
Commander-in-Chief of the American Expeditionary Forces. 

16. VISITS OF INSPECTION BY DELEGATES OF THE PROTECTING POWER 

Art. 121. The diplomatic representative of the Protecting Power shall 
present for approval by the Captor State a list of the delegates for whom are 
desired permits to inspect prisoners of war and the places where they are 
confined. 

Each accepted delegate shall be given a permit authorizing him to inspect 
the prisoners of war and their places of confinement subject to the conditions 
attached thereto. These permits may be cancelled or recalled at any time. 



137 

Art. 122. The following regulations shall apply to the visits mentioned in 
Article 121: 

(a) The authorized delegate of the Protecting Power may visit all 
places where prisoners of war of the State whose interests he is 
protecting are kept. When such visits are to be made in zones barred for 
military reasons, arrangements therefor compatible with military 
necessities shall be made immediately by the competent military 
authorities. If for military reasons such visits are impossible for a period 
of thirty (30) days, the prisoners of war shall be permanently removed to 
territory accessible to the delegate. 

(b) The visits of the delegate of the Protecting Power may be without 
notice and without restriction except as follows: 

Camps under quarantine and contagious wards of hospitals may be 
visited only with the consent of the medical officer in charge. 

Penitentiaries and prisons may be visited only with the consent of 
competent superior authority. 

Permission to visit shops or other places where members of working 
detachments are employed may only be refused by competent superior 
authority when such visit would in his opinion be incompatible with the 
safety of the State or with rules established for the preservation of trade 
secrets. The foregoing shall in no way curtail the right of the delegate of 
the Protecting Power to visit the working detachment camp and to 
interview its members. When the above restriction makes it necessary, 
prisoners of war shall be brought for the purpose of the interview to a 
place accessible to the delegate. 

(c) On arrival a delegate must first present his permit to the proper 
authorities for verification. 

(d) An officer, or, if none is available, some other military escort shall 
be detailed by the Commandant to accompany the delegate on his tour of 
inspection. Upon the wish of the delegate the ranking prisoner of war 
may also be detailed to accompany him. 

(e ) The delegate shall have the right at all times to speak to prisoners 
of war, except those who are awaiting trial, without witnesses and 
outside the hearing of any third party. Nevertheless, interviews with 
prisoners of war who are confined pending trial or under sentence may be 
permitted, with the consent of the proper authorities, when in con- 
formity with the rules and regulations for the visits of third parties to 
such persons. Such consent shall always be given if compatible with the 
object or purpose for which the prisoner of war is detained and with local 
prison regulations. In this event, interviews may take place in the 
presence of witnesses. 

(f) The delegate shall, at no time, without the full knowledge and 
permission of the Commandant, give to or receive from a prisoner of war 
written matter of any kind, or any oral messages; nor shall he converse 
with prisoners of war on any subject not relating to personal matters 
affecting them. 



138 



(g) Before leaving the camp, the delegate may informally present to 
the camp authorities, for discussion and possible rectification, com- 
plaints made by prisoners of war and such suggestions as he may 
consider advisable regarding changes or improvements. 

A prisoner of war shall not be punished on account of a complaint made 

by him to the visiting delegate except when such complaint is shown to 

contain intentionally false or insulting statements or accusations; in 

which case punishment may be inflicted only in the manner prescribed in 

Article 120 and after the delegate of the Protecting Power has been 

heard in the matter. 

Art. 123. The diplomatic representative of the Protecting Power shall be 

freely permitted to make complaints directly to the central authority of the 

Captor State about the management and conditions of the prison camps, the 

treatment of the prisoners of war and about the camp personnel, etc. The 

Captor State shall immediately make an investigation of all such complaints. 

The diplomatic representative of the Protecting Power shall be permitted to 

adduce evidence by witnesses or otherwise. Should it appear essential for a 

full investigation of the case, an officer of the central authority of the Captor 

State shall visit the camp, who shall, upon the request of the competent 

diplomatic representative be accompanied by a delegate of the latter. 

The result of every such investigation and a statement of the action taken 
thereon, shall in each case be communicated to the diplomatic representative 
of the Protecting Power. If the result of the investigation be unfavorable, 
remedial action shall be taken immediately. 

None of the military personnel of a prison camp, including interpreters, 
removed from their positions on account of their attitude towards prisoners of 
war, shall thereafter be employed in connection with prisoners of war. 

17. RATES OF PAY OF OFFICERS AND CERTAIN OTHER PRISONERS OF WAR 

Art. 124. Officer prisoners of war, officials and certain other prisoners of 
war classed as officers shall receive from the Captor State while in its custody 
pay on the basis of the following articles. 

Art. 125. Officers and others entitled to pay will for the purpose of pay be 
divided into three classes. 
Class I comprises: 

(a) Captains and higher grades of the American army and marine 
corps; lieutenants senior grade and officers of higher grades of the 
American navy, line or staff corps. 

(b) Officers of the grade of captain and higher grades of the German 
army and marine infantry. Officers of the rank of "Kapitan- 
Leutnant" and higher ranks of all officer corps of the German navy. 

Class II comprises: 

(a) First and second lieutenants of the American army; officers, line or 
staff corps, of the grade of lieutenant (junior grade), ensign, chief 
warrant officer and warrant officer, whatever their corps or branch, 
of the American navy, and officers of the American marine corps of 
the corresponding grades. 



139 

(b) Subaltern officers of the German army and all officer corps of the 
German navy (including "Feldwebelleutnants" in the army and 
navy as well as "Deckoffizierleutnants, Deckoffizier-Ingenieure" 
and "Hilfs-Offiziere" holding the rank of subaltern officers in the 
German navy). 

Class III comprises: 

(a) Aviation cadets, officer candidates, field clerks, and other ap- 
pointed officers of the American army and navy; 

(b) "Offizier-Stellvertreter" and "Beamten-Stellvertreter" of the 
German army and the German navy, "Fahnriche zur See", 
"Deckoffiziere", "Vize-Deckoffiziere" and "Hilfs-Deckoffiziere" of 
the German navy. 

Art. 126. The monthly pay shall be, on the basis of 1 Dollar=4.20 Marks; 
for class I, 95.25 Dollars or 400 Marks; for class II, 83.35 Dollars or 350 Marks; 
for class III, 65.50 Dollars of 275 Marks. 

Art. 127. Officials of the army or navy prisoners of war of either side shall 
receive during their captivity the same pay as the military persons whose 
rank they hold. 

Art. 128. The rates of the pay herein stipulated shall apply to all prisoners 
of war entitled to pay, whether they are on the active, retired, or reserve 
lists, who at the time of capture were on active duty in the military or naval 
service of their respective States of Origin. 

Art. 129. Prisoners of war entitled to pay under the provisions of Articles 
124 to 128 inclusive shall be paid on or about the first of each month for the 
preceding month or fraction thereof. Pay will accrue from the day of their 
capture. 

When a duplication of pay occurs, due to this agreement and to the 
differences in method of payment of the two Contracting Parties, the 
attention of the recipients shall be called to the fact that they will have to 
refund to their State of Origin upon internment in a neutral country or upon 
repatriation any such amount. 

Art. 130. A prisoner of war who becomes entitled to an increase in pay by 
promotion will be paid at the increased rate from the date named by the State 
of Origin through diplomatic channels as the date on which the promotion 
took effect. 

Art. 131. The obligation of the Captor State to pay prisoners of war as 
provided shall cease upon their internment in a neutral country or upon 
repatriation. 

Art. 132. All payments made by the Captor State to prisoners of war 
according to the above provisions shall ultimately be reimbursed to the 
Captor State by the State of Origin. 

18. TRANSFERS TO OTHER PRISON CAMPS 
Art. 133. Prisoners of war upon being transferred from one place to 

another shall be permitted to take with them their personal effects, letters 

and parcels. 

Art. 134. Upon their own request made through official channels or upon 



140 

the request of their State of Origin, fathers, sons and brothers who are 
simultaneously prisoners of war shall be united in the same main camp or 
working detachment unless sanitary reasons or strict requirements of 
discipline forbid. 

The transportation of prisoners of war who are to be united will be 
furnished by the Captor State without charge. 

As long as the reunion shall not have taken place or when it is not feasible, 
the prisoners of war may communicate by letter or postcard with each other; 
these letters and postcards shall be counted in the authorized maximum. 

Art. 135. Officer prisoners of war shall not be transferred from one camp to 
another except upon urgent necessity and, if transferred, notice of such 
transfer shall be communicated as speedily as possible to the Protecting 
Power. 

Officer prisoners of war may, however, be transferred at their own re- 
quest, in which case, unless it falls within the provisions of Article 134, 
expenses incident to the transfer shall be borne by the officer transferred; 
otherwise the aforesaid expenses shall be borne by the Captor State. 

19. RECOGNITION OF RANK 

Art. 136. The promotion of prisoners of war to the grade of officer or to 
higher ranks or grades shall be recognized by the Captor State upon notifica- 
tion of such promotion by the diplomatic representative of the Protecting 
Power, provided that the promotion was recommended at a date prior to 
capture or becomes effective in due course of seniority according to the laws 
and regulations of the State of Origin. 

Art. 137. In case of doubt as to the military grade of a prisoner of war and 
as to his right to the corresponding privileges and pay, an official statement of 
these matters to the Captor State by the diplomatic representative of the 
Protecting Power shall be conclusive. 

20. RELIEF SOCIETIES 

Art. 138. Each party to this agreement shall be free to designate to the 
other party relief societies, and these societies shall be given all facilities for 
the performance of their humane tasks within the bounds imposed by military 
necessities and administrative regulations. 

21. WAR CORRESPONDENTS, ETC. 

Art. 139. Individuals who follow an army without belonging directly to it, 
such as war correspondents, reporters and purveyors, shall be treated as 
prisoners of war when captured by the enemy and when detention seems 
expedient, provided they are in possession of a certificate from the com- 
mander of the army which they accompany. In this case they are entitled to 
the same treatment as subaltern officers with the exception of pay. 

B. SANITARY PERSONNEL 
I. Repatriation of Sanitary Personnel 

Art. 140. All sanitary personnel and chaplains mentioned in Articles 9, 10 
and 11 of the Geneva Convention of July 6th, 1906, and in the Hague Con- 
vention No. X, of October 18th, 1907, relative to the application to naval 
warfare of the principles laid down in the Geneva Convention, including the 



141 

sanitary personnel of the interned crews of ships of war, shall be repatriated 
as soon as their services are no longer necessary for the proper care of the 
captured sick and wounded of their own State of Origin. 

None of the sanitary personnel of the Contracting Parties who fall into the 
power of the armed forces of the other either on the continent of Europe or in 
European waters, shall be removed from Europe or transferred to another 
State which is at war with the other Contracting Party. 

Art. 141. The term "Sanitary Personnel" shall be held to comprise the 
following: 

(a) To be recognized immediately. 

1. Army and navy chaplains, medical officers, sanitary administration 
officers, doctors of non-commissioned rank (hospital inspectors, apothe- 
caries, etc.), both male and female doctors, nurses and assistants, who 
are clearly recognizable by their special uniforms or otherwise. 

2. Every other wearer of the brassard described in Article 20 of the 
Geneva Convention of July 6th, 1906, who can show his or her right to 
wear this brassard by an officially stamped certificate issued by the 
commanding officer of the organization and signed in his own hand by the 
bearer. These certificates may not be taken away either at the time of 
capture or later. 

3. Persons incontestably identified as members of the sanitary per- 
sonnel by the evidence of third parties. 

(b ) To be recognized upon presentation of further evidence. 

Others the identification of whom shall be accomplished, subject 
to examination by the Captor State, by a subsequent certification 
issued by the Ministry of War or Navy of the State of Origin; or in 
the case of American sanitary personnel, by the Commander-in- 
Chief of the expeditionary force. 
Art. 142. In the case of sanitary personnel belonging to organizations the 
records and archives of which have been destroyed or are in the hands of the 
enemy, it shall suffice that the State of Origin attest the probability of their 
character; such attestation shall be accepted as sufficient evidence. 

Art. 143. The State of Origin shall transmit to the Captor State by 
diplomatic channels the names of the sanitary personnel whose repatriation is 
desired, and the certificate required by Article 141, (b). The return to their 
homes of the sanitary personnel specified in Article 141, (a), shall not be 
conditioned on their inclusion in these lists. 

If the Captor State believes it has grounds for declining repatriation of any 
person on these lists, the reasons must be stated in full. 

Art. 144. The release of sanitary personnel held awaiting trial or serving 
sentence is subject to the provisions of Article 20. 

Art. 145. The taking home of personal effects by released sanitary 
personnel shall be governed by Article 22; and private property, including 
instruments and weapons, which they brought with them into captivity, shall 
be excepted from any prohibitions of export. 

Art. 146. The persons repatriated in accordance with the stipulations in 



142 

Articles 140 to 144 inclusive shall be employed only on medical or religious 
duty. 

II. Treatment of Sanitary Personnel 

Art. 147. The appropriate stipulations of Articles 23 to 40 inclusive, 52 to 
123 inclusive and 133 to 137 inclusive, apply to the treatment of the sanitary 
personnel in the power of the Captor State. 

When captured they shall be allowed to retain, or to deposit against 
receipt, such instruments, implements, drugs and other belongings as can be 
proved to be their personal property. 

Utilization of sanitary personnel on work other than sanitary or medical 
duty is prohibited. 

Art. 148. Sanitary personnel of either of the Contracting Parties while in 
the hands of the other, shall be paid by the latter at the same rates as are paid 
by the German Government to members of its armed forces of similar ranks 
and ratings. The corresponding ranks and ratings of the sanitary personnel of 
the two Contracting Parties are shown in Annex 6. l 

*Not printed. 

When such sanitary personnel would receive a lower rate of pay according 
to the preceding paragraph than prisoners of war of the same rank, they shall 
be paid at the rate authorized for the latter. 

The provisions of Articles 128 to 131 inclusive for the payment of prisoners 
of war shall govern payments to sanitary personnel. Upon identification as 
such, they shall receive back pay due them. 

Art. 149. The sanitary personnel of the armed forces of the two 
Contracting Parties captured while serving with the armed forces of an ally 
or co-belligerent shall be embraced in this agreement as though taken while 
serving with their own armed forces. 

Art. 150. The provisions of Articles 140 to 147 inclusive and 149 shall apply 
to all members of the designated relief societies mentioned in Article 138 
captured by either of the Contracting Parties. 

-T* -T* *T* "T* "T* 

D. GENERAL PROVISIONS 

Art. 173. For the purpose of this agreement, including its seven annexes, 
the terms prisoners of war, civil prisoner, officer, non-commissioned officer, 
invalid, valid, repatriation and State of Origin, shall have the meanings 
defined in Annex 7, except when otherwise specified in the text. 

Art. 174. The transportation of prisoners of war, civil prisoners and 
sanitary personnel, who are entitled to repatriation or internment on the 
basis of this Agreement, shall be arranged with the co-operation of one or 
more neutral States. 

The details for carrying out the transportation by land or sea, including the 
selection of land and sea routes, shall be determined by a mixed commission (a 
transportation commission). Any neutral State, through or in which the 
transportation takes place, shall be represented by one member, and each 
Contracting Party by two members. 



143 



A transportation commission, constituted as above specified, shall convene 
immediately after the ratification of this Agreement or at an earlier date, to 
be agreed upon by both Contracting Parties, at The Hague, subject to the 
consent of the Government of the Netherlands, whose consent both 
Contracting Parties shall endeavor to obtain. 

If necessary the membership of this commission may be increased by 
representatives of other neutral States affected, or additional similar 
commissions may be created in other neutral countries concerned, according 
to circumstances. The chairman of each transportation commission shall be 
the representative of the neutral State in whose territory the commission 
meets. 

The Commission shall arrange that the Governments concerned be 
promptly informed of all decisions and measures that affect them. The 
commission may receive from the Governments concerned all information of 
importance to them. 

The Contracting Parties shall carry out as far as the facilities at their 
command permit and as rapidly as possible the arrangements for trans- 
portation agreed upon by these commissions. The Contracting Parties 
guarantee to all trains and ships, while engaged on any journey or voyage 
having the purpose of carrying out the repatriation or internment herein 
provided for, immunity from any hostile action on their own parts; and they 
will seek to obtain similar guarantees from their Allies and co-belligerents. 
When a return trip is involved as a necessary part of the complete transaction 
as arranged for by the Commission, like immunity shall extend to such return 
trip. 

Art. 175. The following principles shall govern the order in which persons 
eligible for internment in a neutral country or for repatriation shall be 
dispatched: 

(a) Invalid prisoners of war, invalid civil prisoners and sanitary 
personnel, shall have precedence over all other persons who are to 
be transported, and shall be assigned to the next possible shipment 
after their eligibility for internment in a neutral country or for 
repatriation has been established. 

(b) Other persons entitled to transportation shall be sent in the 
following order: 

1. Males under 17 years of age and all females; 

2. Prisoners of war; 

3. Civilian males over 17 years of age; those over 45 years in 
preference to those between 17 and 45 years. 

Precedence in their respective classes among persons named under the 
above classes shall be decided according to length of captivity, and when 
their captivity is of equal duration, according to seniority of age, priority 
being given to the oldest and children going with their parents or guardians. 

(c) If because of uncontrollable circumstances, the order of priority 
contemplated in the preceding paragraphs cannot be followed, the 
repatriation of the person whose departure may have been delayed 



144 

shall take place within a maximum period of two months. 

(d) Persons selected for transportation over seas shall be embarked as 
soon as possible after the arrival of the transport in the port of 
embarkation and in such manner as to utilize fully all available 
space. The proper authorities of the United States co-operating 
with the representative of the Protecting Power shall decide 
questions of priority regarding the transport of Germans. 

(e) As far as possible, families shall be sent on the same transport. 
Art. 176. The expenses of transporting prisoners of war and civil prisoners 

who are to be repatriated or interned in a neutral country in accordance with 
this agreement shall be met as follows: 

(a) The State of Origin shall bear the expenses of transportation 
overseas on their own or neutral ships; 

(b) The expenses of transportation overland in the territory of the 
Captor State and in that of its co-belligerents shall be borne by the 
Captor State; in the territory of the State of Origin, in that of its 
co-belligerents and in that of neutral states, by the State of Origin of 
the prisoners. 

Art. 177. The enumeration in this agreement of certain rights which shall 
be accorded and privileges which shall not be denied to prisoners of war, 
sanitary personnel and civil prisoners, shall not be held or construed to 
preclude additional or greater rights or privileges wherever local conditions 
may permit. 

Art. 178. In the interests of German prisoners of war in the hands of the 
American forces in France, the Protecting Power shall have the right to 
appoint special delegates who shall have the same privileges and duties, and 
shall be under the same restrictions as are provided in this agreement for the 
delegates of the Protecting Powers in the United States and Germany. He 
shall also be advised of all information regarding the prisoners of war with 
whose interests he is charged, which under the terms of this agreement is 
communicated to the representative of the Protecting Power in Washington. 

Art. 179. The Contracting Parties shall instruct all authorities concerned 
to take the severest measures to prevent all violations of the provisions of this 
agreement. 

Art. 180. Each Contracting Party agrees to notify the other through the 
representative of its Protecting Power of errors or omissions by the other in 
the application of the provisions of this Agreement. Upon the receipt of such 
notification the party notified shall immediately conduct any inquiry into the 
causes of the complaint and as soon as possible make known to the Protecting 
Power the results thereof, together with the remedial steps taken. 

Art. 181. Differences of opinion between the two Contracting Parties as to 
the interpretation of this Agreement or of any articles thereof shall be 
referred to a joint commission, which shall consist of a chairman, to be 
designated by the president of the Swiss Confederation, and of one 
representative of each of the Contracting Parties. The decision of this 
commission shall be final. 



145 

Art. 182. No measure of retaliation or reprisal shall be taken by either of 
the Contracting Parties against the prisoners of war of the other without 
giving previous notification of at least forty days of such intent. This 
notification shall contain a definite statement of the reasons for the measure of 
reprisal or retaliation proposed and shall be transmitted simultaneously to 
the diplomatic representative of the Protecting Power and to the 
Government of the Swiss Confederation. The forty days shall be counted 
from the date upon which notification is received by the Swiss Government. 

The period specified in the preceding paragraph may be lengthened by a 
definite period at the option of the State threatening the reprisal, when the 
representative of the Protecting Power states that the time allowed will not 
suffice for a full investigation of the causes assigned. 

Art. 183. Speeches or verbal orders by the commandant of a prison camp 
or one of his subordinates, if delivered in a language other than that of the 
prisoners addressed, shall be translated by an interpreter. Written orders 
shall at all times be translated into the language of the State of Origin of the 
prisoners and shall be kept posted in a conspicuous place as long as they are in 
force. 

Art. 184. The text of this Agreement, together with its annexes, shall, as 
soon as it comes into force, be posted and kept permanently posted in English 
and German, in all camps and working detachments in a public place. The 
highest ranking officers in officers' camps, and the Camp Help Committees 
and their representatives shall be supplied with a sufficient number of copies 
of this Agreement to give all those concerned an opportunity to make 
themselves acquainted with its contents. 

E. APPROVAL OF THE AGREEMENT 

Art. 185. This Agreement and its seven annexes shall be approved by both 
Contracting Parties and notification of such approval in writing shall be 
transmitted immediately thereafter to the Swiss Federal Government. 

The Agreement shall go into effect seven days after the receipt by the 
Swiss Federal Government of both notifications of approval. 

The Contracting Parties agree to take the necessary steps to obtain the 
co-operation of the neutral Governments concerned in any measures 
necessary for the bringing of this Agreement into operation and for its due 
execution. 

ANNEX 1 
Conditions for the Repatriation and Internment of Prisoners of 

War upon the Basis of Health 

1. guiding principles for repatriation and internment 

(a) Guiding principles for repatriation 

There shall be repatriated: 

1. Sick and wounded who, according to medical opinion, cannot be 
expected to recover within a year, because their condition requires treatment 
and their mental or physical ability appears to have undergone marked 
deterioration. 



146 

2. Incurably sick and wounded whose mental or physical ability appears to 
have undergone marked deterioration. 

3. Cured sick and wounded whose mental or physical ability appears to 
have undergone marked deterioration. 

(b) Guiding principles for internment 
There shall be interned: 

1. Sick and wounded whose recovery within a period of one year, while 
expected, would appear more sure and rapid if they were given the benefits 
afforded by the resources of a neutral country than if their captivity were 
prolonged. 

2. Prisoners of war whose mental or physical health, according to medical 
opinion, is seriously menaced by their remaining in captivity, whereas 
internment in a neutral country would probably relieve them of this risk. 

(c) Guiding principles for the repatriation of those interned 
in a neutral country 
There shall be repatriated: 

1. Those whose state of health is or is becoming such that they fall within 
the categories of those eligible for repatriation on the basis of invalidism. 

2. The recovered whose mental or physical ability appears to have 
undergone a marked deterioration. 

2. SPECIAL RULES FOR REPATRIATION AND INTERNMENT 

(a) Special rules for repatriation 
There shall be repatriated: 

1. All prisoners of war who as a result of organic lesions are afflicted with 
any of the following defects: Loss of limb, paralysis, changes in joints, or 
similar injury which causes a defect at least as great as the loss of a foot or a 
hand. 

2. All wounded or injured prisoners of war whose condition is such as to 
make them invalids whose recovery, according to medical opinion, cannot be 
expected within one year. 

3. All sick whose condition is such that their recovery, according to medical 
opinion, cannot be expected within one year. 

To this category belong particularly: 

(a) Progressive tuberculosis of any organ, which, according to medical 
opinion, cannot be cured, or at least markedly bettered, by 
treatment in a neutral country. 

(b) Non-tuberculous affections of the respiratory organs of a pre- 
sumably incurable nature such as, especially, high grade em- 
physema with or without bronchitis, bronchiectasis, severe 
asthma, gas poisoning, etc. 

(c) Serious chronic affections of the organs of circulation (for example, 
valvular diseases with tendency to disturbances of compensation, 
relatively serious diseases of the myocardium, pericardium or 
vessels, particularly inoperable aneurysms of the large vessels, 
etc.). 

(d) Severe chronic affections of the digestive organs. 



147 

(e) Severe chronic affections of the genito-urinary organs (for example, 
all cases of proved chronic nephritis with complete symptoma- 
tology, and particularly those already showing cardiac and vascular 
changes; also chronic pyelitis and cystitis, etc.). 

(f) Severe chronic diseases of the central and peripheral nervous 
system (for example, severe neurasthenia and hysteria, all cases of 
undoubted epilepsy and of exophthalmic goitre). 

(g ) Blindness of both eyes, or of one eye if the vision of the other eye is 
impaired and cannot be corrected to normal by glasses. Diminution 
of visual acuity so that it cannot be brought up by correcting glasses 
to 20/40 in at least one eye. Other ocular affections falling in this 
category are glaucoma, iritis, choroiditis, etc. 

(h) Total bilateral deafness or total unilateral deafness, provided that 

the incompletely deaf ear does not hear ordinary conversation at a 

distance of one meter. 
(i) All clearly established cases of mental disease. 
(k) Grave chronic poisoning by metals or other causes (lead or 

mercurial poisoning, morphinism, cocainism, alcoholism, poisoning 

by gas, etc.). 
(I) Severe chronic affections of the organs of locomotion (arthritis 

deformans, gout, rheumatism with clinically demonstrable organic 

changes). 
(m) All malignant neoplasms, if they are not removable by relatively 

slight operations which do not endanger life. 
(n) All cases of malaria with demonstrable organic alterations 

(considerable chronic enlargements of the liver or spleen, cachexia, 

etc.). 
(o) Grave chronic skin diseases, of such a nature that they do not 

constitute a medical indication for internment in a neutral country. 
(b) Special rules for internment 
Prisoners of war shall be interned if they suffer from any of the following 
affections: 

1. All forms of tuberculosis of any organs, which, according to existing 
medical knowledge, can be cured or at least markedly improved by methods 
available in a neutral country (altitude, treatment in sanatoria, etc.). 

2. All forms of diseases of the respiratory, circulatory, digestive or genito- 
urinary organs, of the nerves, the organs of sense, the locomotor apparatus 
and the skin, which need treatment and which do not belong to the 
categories prescribed for repatriation and are not acute diseases properly 
so-called, showing a tendency to ready recovery. The affections here 
discussed are those which offer better chances of recovery by the application 
of measures available in a neutral country than if the patients were to be 
treated in captivity. 

Nervous troubles caused directly by the events of the war or by captivity, 
such as psychasthenia of prisoners (barbed wire disease) and similar cases 
shall be especially considered. 



148 

All cases of this kind which are definitely determined and which, in view of 
their gravity or their constitutional character, are not entitled to direct 
repatriation, shall be interned. 

Cases of psychasthenia of prisoners (barbed wire disease) which are not 
cured after three months in a neutral country or which, after that length of 
time, are not manifestly on the way to definite cure, shall be repatriated. 

3. All cases of wounds or injuries and of their consequences, which offer a 
better chance of cure in a neutral country than in captivity, and which are not 
on the one hand eligible for repatriation nor on the other insignificant. 

4. All cases of duly proved malaria without clinically demonstrable organic 
alterations (chronic enlargement of liver or spleen, or cachexia, etc.) for 
which a stay in a neutral country offers particularly favorable prospects of a 
complete cure. 

5. All cases of poisoning (particularly by gas, metals, alkaloids) for which 
the prospects of cure are especially favorable in a neutral country. 

There shall be excluded from internment: 

1. All cases of duly proved mental disease. 

2. All organic or functional nervous diseases, reputed incurable. (These 
two categories belong to those which give a right to direct repatriation. ) 

3. Severe chronic alcoholism. 

4. All contagious diseases in the period in which they are transmissible 
(acute infectious diseases, primary and secondary syphilis, trachoma, 
leprosy, etc.). Persons infested with vermin must be freed therefrom before 
internment. 

3. GENERAL REMARKS 
The conditions set forth above should in general be interpreted and applied 
in a spirit as broad as possible. 

This broad interpretation ought to be applied particularly to neuropathic or 
psychopathic states caused or determined by war experiences or by captivity 
itself (psychasthenia of prisoners of war) as well as to cases of tuberculosis in 
all stages. 

There will be many cases brought before the travelling commissions and 
commissions of control which do not conform to the examples given under 
heading 2. The examples are given as typical only. An analogous list of 
surgical alterations has not been made, because, except for certain cases 
which by their very nature are incontestable (amputations), it is difficult to 
make a list of particular types. Experience has shown that the setting forth of 
such cases is in practice inconvenient. 

All cases which do not correspond exactly to the examples cited are to be 
judged in accordance with the spirit of the guiding principles given above. 

ANNEX 2. 

Minimum Conditions for the Equipment and 

Organization of Officers' Camps 

1. HOUSING 

The location and equipment of officers' camps must meet all requirements 
for proper hygiene and cleanliness. Camps shall not be situated in unhealthful 



149 

locations. The wire fences shall not be electrified. The buildings shall be 
suitable for the occupancy of officers, and the rooms shall be sufficiently 
ventilated and free from draughts. The minimum floor space per head shall be 
as follows: 

(a) Sleeping rooms 

Single bed rooms for general and flag officers, 12 square metres. 

Single bed rooms for field and commanding officers, 10 square metres. 

Rooms with more than one bed for field and commanding officers, 8 square 

metres. 

Rooms for all army captains and subaltern officers, 6 square metres. 

(b) Dining rooms, work rooms, and recreation rooms combined 

In camps up to 100 officers, 1 square metre. 

In camps of from 101 to 300 officers, 0.75 square metre. 

In camps of more than 300 officers, 0.50 square metre. 

Working rooms and recreation rooms may be used as dining rooms. In such 
cases they shall be open from reveille to tattoo. 

In so far as barracks are used either for sleeping or dining or as work and 
recreation rooms, they shall as a rule have double walls and wooden floors, 
but where this is not possible, they shall be otherwise sufficiently protected 
against cold and damp. 

The minimum height for all rooms above mentioned shall be 2.50 metres to 
the eaves. 

(c) Protection against fire 

Every reasonable precaution, in accordance with current engineering 
practice in the Captor State, shall be taken against the possibility of injury to 
^prisoners of war because of fire. Fire orders providing for the safe and orderly 
disposition of prisoners of war in case of fire shall be posted in all prison 
barracks and camps in the language of the prisoners of war, and the latter as 
well as the guards shall be fully informed of such orders. These orders shall 
specifically provide for the temporary release under guard of prisoners of war 
confined in cells or special disciplinary inclosures. 

2. PATHS 

Paths habitually in use within the camp shall be kept in serviceable 
condition even in bad weather. 

3. BEDS AND BEDDING 

Each officer shall be provided with a single bed with springs, mattress, 
pillow, two warm covers of adequate dimensions and two sheets. General and 
flag officers and field and commanding officers shall be provided with a pillow 
in addition. The beds shall be raised at least twenty centimeters from the 
floor. Beds shall not be superimposed. 

Bed linen shall be changed at least once a month. 

4. FURNITURE 

Each officer shall have at his disposal in his bedroom a cupboard or other 
place in which he can keep his personal belongings (clothing, etc.). 

Each officer prisoner of war shall have one chair and adequate table space. 
General and flag officers shall each have two chairs. 



150 

5. LIGHTING AND HEATING 

All rooms shall be adequately lighted, and the light for every general or flag 
officer must have a minimum of 16 candle power, and for every field of 
commanding officer a minimum of 10 candle power, in rooms for two officers of 
other grades 16 candle power. Where it is not possible to supply electric light, 
other means of supplying an equal amount of light shall be provided. All 
rooms shall be heated sufficiently for the purpose for which they are used. 

6. GROUNDS FOR GAMES AND EXERCISES 

A space for exercise of sufficient size to permit of games being played shall 
be provided in each camp. In camps having up to 200 prisoners of war a 
minimum of 30 square metres per man; in camps of over 200 men 25 square 
meters per man, shall be provided. Paths may be, but gardens shall not be 
counted in computing this area. Exercise grounds if outside the camp may be 
used on condition that officers give their paroles as in the case of walks. 

7. WASHING AND SANITARY ARRANGEMENTS 

(a) Bathing and washing arrangements 

Every officer shall be enabled to take at least one hot bath or hot shower 
bath a week, and unless other and adequate arrangements are made for 
bathing there shall be at least one shower bath for every forty officers. In 
every camp there must be at least two shower baths available. The shower 
baths shall be available for officers daily for three hours in the morning and 
three hours in the afternoon. 

Ordinarily, every officer shall have at his disposal a wash basin and jug, and 
a water pitcher and glass. Where stationary washstands with running water 
are provided there shall be at least one bowl for every ten officers. 

(b) Sanitary conveniences 

All latrines and urinals shall comply with the requirements of proper 
sanitation and shall be lighted at night. 

There shall be at least one latrine seat for every 30 officers. In no event 
shall there be less than three in any camp. They shall be separated one from 
another and shut off from view. 

There shall be at least one urinal for every 20 officers. 

The latrines for use at night shall be outside the sleeping rooms, and if not 
in the same building, access thereto shall be protected against bad weather. 

Latrines and urinals for the use of officers shall be separate from those used 
by enlisted men. 

8. MEDICAL TREATMENT 

(a) Infirmaries 
An infirmary shall be established in every camp for officer prisoners of war, 
which shall contain at least three beds for every one hundred officers in camp. 
The rules as regards floor space and height shall comply with the conditions 
prescribed for the sleeping rooms. Separate bathing arrangements, latrines 
and urinals shall be provided for sick officers. 

(b) Hospitals 
Officers in hospitals shall be allowed during the day time to be in the open 



151 

air as far as this is in accordance with the treatment prescribed for them by 
the medical officer. 

Officers who are seriously ill may, with the consent of the medical officer, 
be visited by comrades who are in the same hospital or in a neighboring camp. 
The visiting officers must give their paroles under the same conditions as are 
prescribed for walks. 

9. ORDERLIES 

Every general or flag officer shall be entitled to one orderly. Field and 
commanding officers shall be entitled to one orderly for every four officers. 
Army captains and subalterns are entitled to one orderly for every seven 
officers. 

Men employed as orderlies should be willing to perform this duty, should be 
physically fit in every way for the work, and should work only for the officer 
prisoners. 

Orderlies shall be quartered and otherwise treated as well as other 
prisoners of war of like grades. 

The rations and other rights of the orderlies shall not be curtailed on 
account of any gratuities or gifts in kind which they may receive from the 
officers. 

Orderlies shall if possible be of the same State of Origin as the officers to 
whom they are assigned. 

10. ROLL CALL 

A commissioned officer of the Captor State shall be present at all roll calls 
and there shall not be more than three roll calls per day. When there are 
adequate reasons the number of roll calls may be increased temporarily. In 
such case the Secretary of War or his representative must be notified. 

11. PHYSICAL EXERCISES 
Compulsory physical exercises and drills are forbidden. 

ANNEX 3 

Minimum Conditions for the Equipment and Organization of 

Camps for Prisoners of War Other than Officers 

1. HOUSING 

Prisoners of war shall be housed in buildings or barracks which must fulfill 
all requirements of hygiene and be fully protected from inclement weather. 
Barracks shall, if possible, have wooden floors. If that is not practicable, the 
floor shall be so constructed that it can be kept hard, dry and clean. 

Camps shall not be established in unhealthful locations. Wire fencing shall 
not be electrified. 

(a) Dormitories 

The floor space of dormitories shall be on the scale of 3 square meters per 
head. If beds are placed one above the other, the floor space may be reduced 
to 2 square meters per head. Rooms shall be sufficiently large to provide each 
occupant with an air space of 7.5 cubic meters. 

(b ) Living and dining rooms 

In all camps containing at least 100 prisoners of war there shall be dining 
rooms provided with a sufficient quantity of tables and benches. The floor 



152 

space shall be on the scale of 0.5 square metres per head. The dining rooms 
may be used by the prisoners of war for purposes of recreation between 
meals. In that case they must remain open from reveille until tattoo. 

(c) Protection against fire 
Every reasonable precaution, in accordance with current engineering 
practice in the Captor State, shall be taken against the possibility of injury to 
prisoners of war because of fire. Fire orders providing for the safe and orderly 
disposition of prisoners of war in case of fire shall be posted in all prison 
barracks, camps or working camps in the language of the prisoners of war; 
and the latter as well as the guards shall be fully informed of such orders. 
These orders shall specifically provide for the temporary release under guard 
of prisoners of war confined in cells or special disciplinary inclosures. 

2. PATHS 

Paths habitually in use within the camp shall be kept in serviceable 
condition even in bad weather. 

3. BEDS AND BEDDING 

The beds shall be either iron or wooden frames. The bedding shall consist of 
a soft mattress at least 5 centimeters thick throughout and of two warm 
covers of adequate dimensions to be supplied by the Captor State. The bed 
frames shall be raised at least 20 centimeters above the floor. They shall be 
separated by a space 50 centimeters broad or a dividing wall 40 centimeters 
high. The contents of the mattress if of straw, paper, seaweed or similar 
material shall be renewed sufficiently often to insure cleanliness and 
adequate thickness. The contents must not consist of unclean material. 
Prisoners of war shall be allowed to keep their own blankets in addition to 
those provided by the camps. 

4. LIGHTING AND HEATING 

Lighting shall be sufficient to enable prisoners of war to read and write 
from dusk until tattoo in the rooms at their disposal for the purpose. 

All rooms must be sufficiently heated for the purpose for which they are 
used. 

5. GROUNDS FOR GAMES AND EXERCISES 

A space for exercise of sufficient size to permit of outdoor games being 
played shall be provided in each camp. It shall be sufficient to provide ten 
square meters for every non- worker. In main and working camps containing 
more than 100 prisoners of war a special exercise ground shall be provided 
which the prisoners of war themselves shall prepare. The area shall be on a 
basis of 250 square meters for 100 prisoners of war and 75 square meters for 
every additional 100 prisoners of war. Paths may be, but gardens shall not be 
counted in computing this area. 

6. WASHING AND SANITARY ARRANGEMENTS 

(a) Bathing and washing arrangements 
Adequate facilities for washing must be provided and in the absence of 
other adequate arrangements there shall be a tap to every 30 men and a 
shower bath for every 50 men. Suitable provision for washing shall, however, 



153 

always be made when necessitated by the nature of the work prisoners of war 
are called upon to perform. 

Bathing facilities shall permit of at least one hot bath or hot shower per 
week of at least five minutes duration. Facilities for washing clothes shall be 
available at least once a week. 

Prisoners of war shall receive an allowance of soap which shall in no case be 
less than 150 grams per head per month. Prisoners employed on heavy work 
shall receive an extra allowance. 

(b) Sanitary conveniences 

Latrines and urinals must conform to the requirements of health and 
cleanliness and, if in barracks, must be separated from the living rooms. 

There must be at least one latrine seat and one meter of urinal trough for 
every 40 men. 

The latrines for use at night shall be outside the sleeping rooms, and, if not 
in the same buildings, access thereto shall be protected against bad weather. 

Latrines shall be lighted at night. 

7. CLOTHING AND EQUIPMENT 

(a) Clothing 

Clothing, underclothing and footwear shall be furnished by the Captor 
State, the quality of which shall equal that of the same articles furnished for 
similar purposes to its own armed forces. Furthermore the prisoners of war 
shall be allowed to receive wearing apparel and other objects of daily use from 
the designated relief societies. No such consignment shall relieve the Captor 
State of the obligation of providing clothing, etc. The Captor State shall 
provide for regular renewal and repair. 

Regulation uniforms furnished by the State of Origin or the relief societies 
shall not be cut for the purpose of applying stripes or other distinctive marks. 

Every prisoner of war shall be provided with the following articles: 1 cap, 1 
pair cloth trousers, 1 cloth coat or tunic, 1 overcoat, 2 shirts, 2 pairs of 
drawers, 2 pairs of socks or stockings, 2 pairs of boots or shoes of which one 
pair may be house shoes or wooden slippers, 1 towel per week. 

In addition, each worker shall be provided with a suit of drill overalls 
whenever the nature of the work requires it. 

(b) Equipment 

Each prisoner of war shall be given a mess kit and utensils, including a 
knife, fork and a spoon, a drinking cup and a barrack bag or other suitable 
container for his personal belongings. 

8. MEDICAL TREATMENT 

(a) Infirmaries 

In every camp containing more than 30 prisoners of war there shall be an 
infirmary. The number of beds shall be three for every hundred prisoners and 
for every bed there shall be an air space of at least 10 cubic metres. The beds 
shall each have springs, a mattress, a pillow and sheets. 

Special bath and sanitary conveniences shall be provided for the sick. 

(b) Hospitals 

Prisoners of war under treatment in hospitals shall be given opportunity 



154 

for being in the open air daily, so far as this is in accordance with the 
treatment prescribed for them by the medical officers. 

Men who are seriously ill may be visited, so far as practicable and subject to 
the consent of the medical officer, by comrades who are located in the same 
hospital or in a neighboring camp. 

9. PHYSICAL EXERCISES 

Compulsory drills and physical exercises shall not last more than one hour 
per day. 

ANNEX 4 

Regulations for Carrying out the Punishment of Officer 

Prisoners of War in Prison Camps and Military Prisons 

1. HOUSING 
Rooms shall be sanitary, sufficiently large, light, dry, well ventilated by at 
least one window leading to the open air, and warmed during cold weather; 
they must be artificially lighted from dusk to 9 P.M. Places of confinement 
may be secured by locks. 

2. FURNITURE 

The furniture of the rooms shall consist of a bed with mattress, sufficient 
blankets and sheets, one table, one chair, a wash-basin, a water pitcher and 
glass. 

3. DIET 

Officer prisoners of war under punishment shall receive from the Officers' 
mess the same diet as those who are not under punishment. They shall not be 
permitted to buy alcoholic beverages or eatables. They shall be allowed to 
smoke. 

4. EXERCISE 

Officer prisoners of war under punishment may take exercise in the open 
air for 2 hours a day, but must not have communication with their fellows. • 

5. OCCUPATION 

Officer prisoners of war under punishment shall be allowed to read and 
write and to receive newspapers. If two or more officers are confined in the 
same room they shall be allowed to talk together. They shall be permitted to 
play games, but not to gamble. 

6. CORRESPONDENCE 

Officer prisoners of war under punishment shall be allowed to receive and 
send the authorized maximum of letters and post cards. However parcels and 
money addressed to them shall not be delivered until their punishment has 
expired. 

The food contents of parcels shall be handed over to the Officers' mess of the 
camp. If any officer prisoner does not receive his food from the Officers' mess, 
he shall receive the food contents of parcels intended for him, together with 
facilities and fuel for cooking such food. 

7. SANITARY CONVENIENCES 

Officer prisoners of war under punishment shall have every reasonable 
facility for keeping themselves in a state of personal cleanliness. The rooms in 
which they are confined shall be properly cleaned. Latrines shall be kept clean 



155 

and odorless. Night stools in the rooms are forbidden, but adequate 
opportunities for attending to the calls of nature shall be given. 

8. ORDERLIES 
Orderlies shall be provided for necessary cooking, policing, etc. 

9. CLOTHING 

Officer prisoners of war under punishment shall be allowed such of their 
clothing as they may reasonably request. 

ANNEX 5 

Regulations for the Carrying Out of Punishments of Prisoners 

of War Other than Officers in Prison Camps and Military 

Prisons 

1. HOUSING 
Rooms shall be sanitary, sufficiently light, dry, well ventilated and warmed 
in cold weather. The cubic contents shall at least be 2 1 /2x2 1 /2xl 1 /2 meters per 
head. There need be no artificial lighting. 

2. FURNITURE AND CLOTHING 

Each room shall be provided with a wooden bed board without a mattress. 
The bed board shall not be taken from the room. A mattress shall be allowed 
one night in every four. In the room there shall be a water pitcher and a 
drinking glass. If washing facilities are not afforded outside of the room, each 
prisoner of war under punishment shall be furnished a wash basin. They shall 
be allowed at all times a sufficient number of blankets. They may retain their 
uniforms and overcoats. 

3. DIET 

As a punishment, prisoners of war may be put on a bread and water diet. 
While on bread and water diet they shall receive not less than 500 grams of 
bread each day and as much drinking water as they wish. Such diet shall not 
be continued for more than 3 days at a time; nor more than 6 days out of 12 
consecutive days; nor more than 12 days in 28; nor more than a total of 80 days 
in one year. On all other days they shall receive the same full ration as their 
comrades, including their share of the food supplies received from the 
designated relief societies. Unless such additional food supplies are turned 
into the mess for all prisoners together, prisoners of war under punishment 
shall be granted facilities and fuel for cooking such food on all days on which 
they are entitled to full ration. 

Prisoners of war under punishment who are required to work shall not be 
put on restricted diet but shall each day receive the same food as their 
comrades. 

Alcoholic beverages and smoking are forbidden. 

4. OUTDOOR EXERCISE 

Prisoners of war under punishment shall be allowed two hours exercise in 
the open air every day without having communication with their comrades. 

5. EMPLOYMENT 

Prisoners of war under punishment may be employed on work during the 
day. Reading and writing shall be permitted. 



156 

6. CORRESPONDENCE 

Prisoners of war under punishment shall be allowed to receive and to send 
the authorized maximum of letters and postcards. However, parcels and 
money which may be addressed to them shall not be delivered until their 
punishment has expired. Food stuffs contained in parcels shall be handed 
over to the prisoner of war mess. 

7. SANITATION 

Prisoners of war under punishment shall have sufficient facilities for 
keeping themselves in a state of personal cleanliness. Their rooms shall be 
properly cleaned. Latrines shall be kept clean and odorless. Night stools in 
the rooms are forbidden; but sufficient opportunity shall be afforded to attend 
to calls of nature during the night. 

ANNEX 6 

Corresponding Titles and Ranks of the Sanitary Personnel of the 

German and American Land and Naval Forces 

[This annex consists of a table.] 

ANNEX 7 
Definitions 
1. prisoners of war 
The term "prisoners of war" shall comprise those officers, officials, non- 
commissioned officers and enlisted or enrolled persons, male or female, of all 
branches and corps of the army, navy, and marine corps whether on the 
active, retired or reserve lists, who are captured while in the active service of 
the armed forces of their State of Origin. Sanitary personnel are excluded. 

2. CIVIL PRISONERS 

The term "civil prisoners" shall comprise all citizens or subjects of either 
Contacting Party held in confinement by the other for any reason except the 
violation of the penal laws in force in the territories of the Captor State or any 
of its subdivisions; inclusive of the officers and members of crews of merchant 
ships, and exclusive of persons coming within the definition of "prisoners of 
war," or Article 139 or 140. 

3. OFFICERS 

The term "officer" shall comprise the officers of all corps of the armed 
forces, military or naval, of the two Contracting Parties and shall include 
commissioned, warranted and appointed officers of the United States, 
"Hilfsoffiziere" of the German navy and officials with the rank of officer in the 
German army or navy. 

4. NON-COMMISSIONED OFFICERS 

The terms "non-commissioned officer" shall include in the American army 
corporals, and in the German army or navy "Offiziersstellvertreter" and 
"Beamtenstellvertreter," "Deckoffiziere," "Vizedeckoffiziere" and 
"Hilfsdeckoffiziere." 

5. STATE OF ORIGIN 

The term "State of Origin" shall be held to mean: 

(a) with reference to military or naval personnel, the State in whose 



157 

armed forces they are commissioned, warranted, appointed, en- 
listed or enrolled; 
(b) with reference to non-military persons, the State with whose armed 
forces they are exclusively connected. 

6. INVALID AND VALID PRISONERS OF WAR 

The term "invalid prisoners of war" shall comprise those who are eligible 
for internment in a neutral country or repatriation under the terms of this 
Agreement because of physical or mental unsoundness. All other prisoners of 
war shall be deemed "valid." 

7. REPATRIATION 

The term "repatriation" shall, when applied to prisoners of war and 
sanitary personnel, mean the return to American or German military control; 
as applied to civilians it is defined in Article 163. 



158 

DOCUMENT NO. 43 

REPORT OF THE COMMISSION ON THE RESPONSIBILITY OF 

THE AUTHORS OF THE [FIRST WORLD] WAR AND ON 

ENFORCEMENT OF PENALTIES 

(29 March 1919) 

SOURCE 
14 AJIL 95 



NOTE 
The Commission on the Responsibility of the Authors of the [First World] 
War and on Enforcement of Penalties was created by the Preliminary Peace 
Conference which met at Versailles in 1919 and which ultimately drafted the 
Treaty of Peace between the Allied and Associated Powers and Germany 
which legally terminated World War I (1914-1918). That Treaty, known as 
the Treaty of Versailles (DOCUMENT NO. 44), contained a number of 
provisions for the trial of persons accused of having committed war crimes, 
including the maltreatment of prisoners of war, as recommended in this 
Report. 

EXTRACTS 

The Preliminary Peace Conference at the plenary session on the 25th 
January, 1919 (Minute No. 2), decided to create, for the purpose of inquiring 
into the responsibilities relating to the war, a commission composed of fifteen 
members, two to be named by each of the Great Powers (United States of 
America, British Empire, France, Italy and Japan) and five elected from 
among the Powers with special interests. 

The Commission was charged to inquire into and report upon the following 
points: 

1 . The responsibility of the authors of the war. 

2. The facts as to breaches of the laws and customs of war committed 
by the forces of the German Empire and their Allies, on land, on sea, 
and in the air during the present war. 

3. The degree of responsibility for these offences attaching to par- 
ticular members of the enemy forces, including members of the 
General Staffs, and other individuals, however highly placed. 

4. The constitution and procedure of a tribunal appropriate for the 
trial of these offences. 

5. Any other matters cognate or ancillary to the above which may 
arise in the course of the enquiry, and which the Commission finds it 
useful and relevant to take into consideration. 

Chapter II 

VIOLATIONS OF THE LAWS AND CUSTOMS OF WAR 

On the second point submitted by the Conference, the facts as to breaches of 



159 

the laws and customs of war committed by the forces of the German Empire 
and their allies on land, on sea, and in the air, during the present war, the 
Commission has considered a large number of documents. The Report of the 
British Commission drawn up by Lord Bryce, the labors of the, French 
Commission presided over by M. Payelle, the numerous publications of the 
Belgian Government, the Memorandum submitted by the Belgian Dele- 
gation, the Memorandum of the Greek Delegation, the documents lodged by 
the Italian Government, the formal denunciation by the Greeks at the 
Conference of the crimes committed against Greek populations by the 
Bulgars, Turks and Greeks, the Memorandum of the Serbian Delegation, the 
Report of the Inter-Allied Commission on the violations of the Hague 
Conventions and of international law in general, committed between 1915 and 
1918 by the Bulgars in occupied Serbia, the summary of the Polish 
Delegation, together with the Roumanian and Armenian Memoranda, supply 
abundant evidence of outrages of every description committed on land, at 
sea, and in the air, against the laws and customs of war and of the laws of 
humanity. 

In spite of the explicit regulations, of established customs, and of the clear 
dictates of humanity, Germany and her allies have piled outrage upon 
outrage. Additions are daily and continually being made. It is impossible to 
imagine a list of cases so diverse and so painful. Violations of the rights of 
combatants, of the rights of civilians, and of the rights of both, are multiplied 
in this list of the most cruel practices which primitive barbarism, aided by all 
the resources of modern science, could devise for the execution of a system of 
terrorism carefully planned and carried out to the end. Not even prisoners, or 
wounded, or women, or children have been respected by belligerents who 
deliberately sought to strike terror into every heart for the purpose of 
repressing all resistance. Murders and massacres, tortures, shields formed of 
living human beings, collective penalties, the arrest and execution of 
hostages, the requisitioning of services for military purposes, the arbitrary 
destruction of public and private property, the aerial bombardment of open 
towns without there being any regular siege, the destruction of merchant 
ships without previous visit and without any precautions for the safety of 
passengers and crew, the massacre of prisoners, attacks on hospital ships, 
the poisoning of springs and of wells, outrages and profanations without 
regard for religion or the honor of individuals, the issue of counterfeit money 
reported by the Polish Government, the methodical and deliberate 
destruction of industries with no other object than to promote German 
economic supremacy after the war, constitute the most striking list of crimes 
that has ever been drawn up to the eternal shame of those who committed 
them. The facts are established. They are numerous and so vouched for that 
they admit of no doubt and cry for justice. The Commission, impressed by 
their number and gravity, thinks there are good grounds for the constitution 
of a special commission, to collect and classify all outstanding information for 
the purpose of preparing a complete list of the charges under the following 
heads: 



160 

The following is the list arrived at: 

* * * 

(28) Directions to give no quarter. 

(29) Ill-treatment of wounded and prisoners of war. 

(30) Employment of prisoners of war on unauthorized works. 

* * * 

The Commission desires to draw attention to the fact that the offences 
enumerated and the particulars given in Annex I are not regarded as 
complete and exhaustive; to these such additions can from time to time be 
made as may seem necessary. 

CONCLUSIONS 

1. The war was carried on by the Central Empires together with their 
allies, Turkey and Bulgaria, by barbarous or illegitimate methods in 
violation of the established laws and customs of war and the elementary laws 
of humanity. 

2. A commission should be created for the purpose of collecting and 
classifying systematically all the information already had or to be obtained, 
in order to prepare as complete a list of facts as possible concerning the 
violations of the laws and customs of war committed by the forces of the 
German Empire and its Allies, on land, on sea and in the air, in the course of 
the present war. 

Chapter III 

PERSONAL RESPONSIBILITY 

The third point submitted by the Conference is thus stated: 

The degree of responsibility for these offences attaching to 
particular members of the enemy forces, including members of the 
General Staffs and other individuals, however highly placed. 

For the purpose of dealing with this point, it is not necessary to wait for 
proof attaching guilt to particular individuals. It is quite clear from the 
information now before the Commission that there are grave charges which 
must be brought and investigated by a court against a number of persons. 

In these circumstances, the Commission desire to state expressly that in 
the hierarchy of persons in authority, there is no reason why rank, however 
exalted, should in any circumstances protect the holder of it from 
responsibility when that responsibility has been established before a 
properly constituted tribunal. This extends even to the case of heads of 
states. An argument has been raised to the contrary based upon the alleged 
immunity, and in particular the alleged inviolability, of a sovereign of a state. 
But this privilege, where it is recognized, is one of practical expedience in 
municipal law, and is not fundamental. However, even if, in some countries, a 
sovereign is exempt from being prosecuted in a national court of his own 
country the position from an international point of view is quite different. 

We have later on in our Report proposed the establishment of a high 
tribunal composed of judges drawn from many nations, and included the 
possibility of the trial before that tribunal of a former head of a state with the 
consent of that state itself secured by articles in the Treaty of Peace. If the 



161 

immunity of a sovereign is claimed to extend beyond the limits above stated, 
it would involve laying down the principle that the greatest outrages against 
the laws and customs of war and the laws of humanity, if proved against him, 
could in no circumstances be punished. Such a conclusion would shock the 
conscience of civilized mankind. 

In view of the grave charges which may be preferred against — to take one 
case — the ex-Kaiser — the vindication of the principles of the laws and 
customs of war and the laws of humanity which have been violated would be 
incomplete if he were not brought to trial and if other offenders less highly 
placed were punished. Moreover, the trial of the offenders might be seriously 
prejudiced if they attempted and were able to plead the superior orders of a 
sovereign against whom no steps had been or were being taken. 

There is little doubt that the ex- Kaiser and others in high authority were 
cognizant of and could at least have mitigated the barbarities committed 
during the course of the war. A word from them would have brought about a 
different method in the action of their subordinates on land, at sea and in the 
air. 

We desire to say that civil and military authorities cannot be relieved from 
responsibility by the mere fact that a higher authority might have been 
convicted of the same offence. It will be for the court to decide whether a plea 
of superior orders is sufficient to acquit the person charged from 
responsibility. 

CONCLUSION 

All persons belonging to enemy countries, however high their position may 
have been, without distinction of rank, including Chiefs of States, who have 
been guilty of offences against the laws and customs of war or the laws of 
humanity, are liable to criminal prosecution. 

Chapter IV 

CONSTITUTION AND PROCEDURE OF AN APPROPRIATE TRIBUNAL 

The fourth point submitted to the Commission is stated as follows: 

The constitution and procedure of a tribunal appropriate for the 
trial of these offences (crimes relating to the war). 

On this question the Commission is of opinion that, having regard to the 
multiplicity of crimes committed by those Powers which a short time before 
had on two occasions at The Hague protested their reverence for right and 
their respect for the principles of humanity, the public conscience insists upon 
a sanction which will put clearly in the light that it is not permitted cynically 
to profess a disdain for the most sacred laws and the most formal 
undertakings. 

Two classes of culpable acts present themselves: 

(a) Acts which provoked the world war and accompanied its inception. 

(b) Violations of the laws and customs of war and the laws of humanity. 

* * * 

(b) Violations of the Laws and Customs of War and of the Laws 

of Humanity 
Every belligerent has, according to international law, the power and 



162 

authority to try the individuals alleged to be guilty of the crimes of which an 
enumeration has been given in Chapter II on Violations of the Laws and 
Customs of War, if such persons have been taken prisoners or have otherwise 
fallen into its power. Each belligerent has, or has power to set up, pursuant to 
its own legislation, an appropriate tribunal, military or civil, for the trial of 
such cases. These courts would be able to try the incriminated persons 
according to their own procedure, and much complication and consequent 
delay would be avoided which would arise if all such cases were to be brought 
before a single tribunal. 

There remain, however, a number of charges: 

(a) Against persons belonging to enemy countries who have committed 
outrages against a number of civilians and soldiers of several Allied 
nations, such as outrages committed in prison camps where 
prisoners of war of several nations were congregated or the crime of 
forced labor in mines where prisoners of more than one nationality 
were forced to work; 

(b) Against persons of authority, belonging to enemy countries, whose 
orders were executed not only in one area or on one battle front, but 
whose orders affected the conduct of operations against several of 
the Allied armies; 

(c) Against all authorities, civil or military, belonging to enemy 
countries, however high their position may have been, without 
distinction of rank, including the heads of states, who ordered, or, 
with knowledge thereof and with power to intervene, abstained 
from preventing or taking measures to prevent, putting an end to or 
repressing, violations of the laws or customs of war (it being 
understood that no such abstention should constitute a defence for 
the actual perpetrators); 

(d) Against such other persons belonging to enemy countries as, 
having regard to the character of the offence or the law of any 
belligerent country, it may be considered advisable not to proceed 
before a court other than the high tribunal hereafter referred to. 

For the trial of outrages falling under these four categories the Commission 
is of opinion that a high tribunal is essential and should be established 
according to the following plan: 

(1) It shall be composed of three persons appointed by each of the 
following governments: The United States of America, the British 
Empire, France, Italy and Japan, and one person appointed by each 
of the following governments: Belgium, Greece, Poland, Portugal, 
Roumania, Serbia and Czecho-Slovakia. The members shall be 
selected by each country from among the members of their national 
courts or tribunals, civil or military, and now in existence or erected 
as indicated above. 

(2) The tribunal shall have power to appoint experts to assist it in the 
trial of any particular case or class of cases. 

(S) The law to be applied by the tribunal shall be "the principles of the 



163 



law of nations as they result from the usages established among 
civilized peoples, from the laws of humanity and from the dictates of 
public conscience." 
(U) When the accused is found by the tribunal to be guilty, the tribunal 
shall have the power to sentence him to such punishment or 
punishments as may be imposed for such an offence or offences by 
any court in any country represented on the tribunal or in the 
country of the convicted person. 

(5) The tribunal shall determine its own procedure. It shall have power 
to sit in divisions of not less than five members and to request any 
national court to assume jurisdiction for the purpose of inquiry or 
for trial judgment. 

(6) The duty of selecting the cases for trial before the tribunal and of 
directing and conducting prosecutions before it shall be imposed 
upon a Prosecuting Commission of five members, of whom one shall 
be appointed by the Governments of the United States of America, 
the British Empire, France, Italy and Japan, and for the assistance 
of which any other government may delegate a representative. 

(7) Applications by any Allied or Associated Government for the trial 
before the tribunal of any offender who has not been delivered up or 
who is at the disposition of some other Allied or Associated 
Government shall be addressed to the Prosecuting Commission, 
and a national court shall not proceed with the trial of any person 
who is selected for trial before the tribunal, but shall permit such 
person to be dealt with as directed by the Prosecuting Commission. 

(8) No person shall be liable to be tried by a national court for an offence 
in respect of which charges have been preferred before the tribunal, 
but no trial or sentence by a court of an enemy country shall bar trial 
and sentence by the tribunal or by a national court belonging to one 
of the Allied or Associated States. 

CONCLUSIONS 
The Commission has consequently the honor to recommend: 

1 . That a high tribunal be constituted as above set out. 

2. That is shall be provided by the treaty of peace: 

(a) That the enemy governments shall, notwithstanding that peace 
may have been declared, recognize the jurisdiction of the national 
tribunals and the high tribunal, that all enemy persons alleged to 
have been guilty of offences against the laws and customs of war 
and the laws of humanity shall be excluded from any amnesty to 
which the belligerents may agree, and that the governments of such 
persons shall undertake to surrender them to be tried. 

(b) That the enemy governments shall undertake to deliver up and give 
in such manner as may be determined thereby: 

(i) The names of all persons in command or charge of or in any way 
exercising authority in or over all civilian internment camps, 
prisoner-of-war camps, branch camps, working camps and 



164 



"commandoes" and other places where prisoners were confined in 
any of their dominions or in territory at any time occupied by them, 
with respect to which such information is required, and all orders 
and instructions or copies of orders or instructions and reports in 
their possession or under their control relating to the adminis- 
tration and discipline of all such places in respect of which the 
supply of such documents as aforesaid shall be demanded; 

(ii) All orders, instructions, copies of orders and instructions, General 
Staff plans of campaign, proceedings in naval or military courts 
and courts of inquiry, reports and other documents in their 
possession or under their control which relate to acts or operations, 
whether in their dominions or in territory at any time occupied by 
them, which shall be alleged to have been done or carried out in 
breach of the laws and customs of war and the laws of humanity; 

(in) Such information as will indicate the persons who committed or 
were responsible for such acts or operations; 

(iv) All logs, charts, reports and other documents relating to operations 
by submarines; 

(v) All orders issued to submarines, with details or scope of operations 
by these vessels; 

(vi) Such reports and other documents as may be demanded relating to 
operations alleged to have been conducted by enemy ships and their 
crews during the war contrary to the laws and customs of war and 
the laws of humanity. 

3. That each Allied and Associated Government adopt such legislation 
as may be necessary to support the jurisdiction of the international 
court, and to assure the carrying out of its sentences. 

Jf. That the five states represented on the Prosecuting Commission shall 
jointly approach neutral governments with a view to obtaining the 
surrender for trial of persons within their territories who are charged 
by such states with violations of the laws and customs of war and the 
laws of humanity. 



165 

DOCUMENT NO. 44 

TREATY OF PEACE BETWEEN THE ALLIED AND ASSOCIATED 
POWERS, OF THE ONE PART, AND GERMANY, OF THE 

OTHER PART 

(Versailles, 28 June 1919) 

SOURCES 
2 Bevans 43 
112BFSP1 
13 AJIL Supp. 151 

NOTE 

This is the treaty which officially ended World War I (1914-1918) and which 
is believed by some to have laid the basis for World War II (1939-1945). With 
respect to the provisions of the treaty concerning the repatriation of 
prisoners of war, it must be borne in mind that all of the members of the 
armed forces of the Allied and Associated Powers who had been held as 
prisoners of war by Germany during the hostilities had long since been 
repatriated in accordance with the provisions of the 1918 Armistice 
Agreement (DOCUMENT NO. 41) and that some of these provisions of the 
treaty, although stated in a bilateral manner, actually were concerned solely 
with the problem of the many German prisoners of war who were still being 
held by some of the Allied and Associated Powers in June 1919. There was no 
improvement in the applicable law contained in Article 75(1) of the 1929 
Geneva Prisoner-of-War Convention (DOCUMENT NO. 49) and the problem 
of lengthy delay in the repatriation of the members of the armed forces of the 
vanquished nation who were prisoners of war continued to arise (see, for. 
example, DOCUMENT NO. 50 and DOCUMENT NO. 64). It was finally 
resolved by the adoption of Article 118 of the 1949 Geneva Prisoner-of-War 
Convention (DOCUMENT NO. 108). However, even that article failed of 
implementation by India after the 1971 armed conflict between India and 
Pakistan. (See DOCUMENT NO. 167). It should be noted that Article 220(2) 
of the Treaty of Versailles included the principle of "voluntary" repatriation. 
It should also be noted that Articles 228-230, among others, of the Treaty 
implemented the recommendations of the Commission on the Responsibility 
of the Authors of the [First World] War and on Enforcement of Penalties 
(DOCUMENT NO. 43). Despite the cited articles, the German Government 
of the day, bowing to public pressure, refused to deliver the accused to the 
Allied and Associated Powers for trial. It was then agreed that they would be 
tried by a German court, the Supreme Court of Leipzig. After a number of 
cases, including several which involved maltreatment of prisoners of war, 
had been so tried, it became evident that the program was failing to 
accomplish its purpose and it was discontinued. 



166 

EXTRACTS 
Article 214. 

The repatriation of prisoners of war and interned civilians shall take place 
as soon as possible after the coming into force of the present Treaty and shall 
be carried out with the greatest rapidity. 

Article 215 

The repatriation of German prisoners of war and interned civilians shall, in 
accordance with Article 214, be carried out by a Commission composed of 
representatives of the Allied and Associated Powers on the one part and of 
German Government on the other part. 

For each of the Allied and Associated Powers a Sub-Commission, 
composed exclusively of Representatives of the interested Power and of 
Delegates of the German Government, shall regulate the details of carrying 
into effect the repatriation of the prisoners of war. 

Article 216. 

From the time of their delivery into the hands of the German authorities 
the prisoners of war and interned civilians are to be returned without delay to 
their homes by the said authorities. 

Those amongst them who before the war were habitually resident in 
territory occupied by the troops of the Allied and Associated Powers are 
likewise to be sent to their homes, subject to the consent and control of the 
military authorities of the Allied and Associated armies of occupation. 

Article 217. 

The whole cost of repatriation from the moment of starting shall be borne 
by the German Government who shall also provide the land and sea transport 
and staff considered necessary by the Commission referred to in Article 215. 

Article 218. 

Prisoners of war and interned civilians awaiting disposal or undergoing 
sentence for offences against discipline shall be repatriated irrespective of 
the completion of their sentence or of the proceedings pending against them. 

This stipulation shall not apply to prisoners of war and interned civilians 
punished for offences committed subsequent to May 1, 1919. 

During the period pending their repatriation all prisoners of war and 
interned civilians shall remain subject to the existing regulations, more 
especially as regards work and discipline. 

Article 219. 

Prisoners of war and interned civilians who are awaiting disposal or 
undergoing sentence for offences other than those against discipline may be 
detained. 

Article 220. 

The German Government undertakes to admit to its territory without 
distinction all persons liable to repatriation. 

Prisoners of war or other German nationals who do not desire to be 
repatriated may be excluded from repatriation; but the Allied and Associated 
Governments reserve to themselves the right either to repatriate or to take 



167 

them to a neutral country or to allow them to reside in their own territories. 

The German Government undertakes not to institute any exceptional 
proceedings against these persons or their families nor to take any repressive 
or vexatious measures of any kind whatsoever against them on this account. 

Article 221. 

The Allied and Associated Governments reserve the right to make the 
repatriation of German prisoners of war or German nationals in their hands 
conditional upon the immediate notification and release by the German 
Government of any prisoners of war who are nationals of the Allied and 
Associated Powers and may still be in Germany. 

Article 222. 

Germany undertakes: 

(1) To give every facility to Commissions to enquire into the cases of those 
who cannot be traced; to furnish such Commissions with all necessary means 
of transport; to allow them access to camps, prisons, hospitals and all other 
places; and to place at their disposal all documents, whether public or private, 
which would facilitate their enquiries; 

(2) To impose penalties upon any German officials or private persons who 
have concealed the presence of any nationals of any of the Allied and 
Associated Powers or have neglected to reveal the presence of any such after 
it had come to their knowledge. 

Article 224. 

The High Contracting Parties waive reciprocally all repayment of sums 
due for the maintenance of prisoners of war in their respective territories. 

Article 228. 

The German Government recognizes the right of the Allied and Associated 
Powers to bring before military tribunals persons accused of having 
committed acts in violation of the laws and customs of war. Such persons 
shall, if found guilty, be sentenced to punishments laid down by law. This 
provision will apply notwithstanding any proceedings or prosecution before a 
tribunal in Germany or in the territory of her allies. 

The German Government shall hand over to the Allied and Associated 
Powers, or to such one of them as shall so request, all persons accused of 
having committed an act in violation of the laws and customs of war, who are 
specified either by name or by the rank, office or employment which they held 
under the German authorities. 

Article 229. 

Persons guilty of criminal acts against the nationals of one of the Allied and 
Associated Powers will be brought before the military tribunals of that 
Power. 

Persons guilty of criminal acts against the nationals of more than one of the 
Allied and Associated Powers will be brought before military tribunals 
composed of members of the military tribunals of the Powers concerned. 

In every case the accused will be entitled to name his own counsel. 

Article 230. 

The German Government undertakes to furnish all documents and 



168 



information of every kind, the production of which may be considered 
necessary to ensure the full knowledge of the incriminating acts, the 
discovery of offenders and the just appreciation of responsibility. 






169 
DOCUMENT NO. 45 

TREATY OF PEACE BETWEEN RUSSIA AND ESTHONIA 

(Tartu, 2 February 1920) 

SOURCE 
11LNTS51 

NOTE 
This is one example of the large number of treaties entered into by the new 
Russian Soviet Government with its European neighbors, and others, in the 
aftermath of World War I (1914-1918) and the Russian Revolution (1917). It 
will be noted that one characteristic of these treaties was that prisoners of 
war were given the alternatives of being repatriated, of remaining in the 
country in which held if that constry consented, of going to a third country 
(see, for example, DOCUMENT NO. 38) or were to be allowed to go "where 
they themselves desire it" (see, for example, DOCUMENT NO. 46). Note 
also the amnesty provision contained in Article 10. 

EXTRACTS 
Article 9. 
The prisoners of war of both countries shall be released as soon as possible. 
The formalities for the exchange of prisoners are set out in the Annex to this 
Article. 

Note 1 . The term "prisoners of war" shall apply to individuals who were 
captured and did not take service in the armies of the State which captured 
them. 

Note 2. Prisoners of war who were captured by irregular forces and did not 
take service in the ranks of such forces shall be repatriated in the ordinary 
course. 

Annex to Article 9. 

(1) Prisoners of war of both contracting Parties shall be repatriated, unless 
they prefer to remain in the country in which they are (with the consent of the 
Government of that country), or to go to some other country. 

(2) The periods within which the exchange of prisoners of war shall be 
carried out shall be settled by the two Governments after the ratification of 
the Peace Treaty. 

(3) Prisoners of war shall, at the time of their release, have restored to 
them everything of which they were deprived by acts of the authorities of the 
Government which captured them, and shall also receive the full amount of 
the pay due to them, or any part of such pay withheld from them. 

(4) Each of the contracting Parties shall undertake to refund the costs of 
the maintenance of its citizens who were made prisoners, as far as these 
expenses have not been covered by the work of the prisoners in State or 
private enterprises. The payment shall be carried out in the currency of the 
State which maintained the prisoners. 



170 



Note. The costs of maintenance to be refunded shall comprise the value of 
the prisoners' food, the supplies made to him in kind, and his pay. 

(5) Prisoners shall be conducted to the frontier in detachments, at the 
expense of the Government which captured them; the return of these 
prisoners shall be carried out according to the lists drawn up, which shall 
show the Christian name, patronymic and family name of the prisoner, the 
date of his capture, the unit in which he was serving before capture, and, if he 
has been sentenced to imprisonment for any act regarded as criminal, the 
precise nature of such crime and the date on which it was committed. 

(6) Immediately after the ratification of the Peace Treaty, a Committee, 
consisting of four representatives of each of the contracting Parties, shall be 
formed for the exchange of prisoners of war. This Committee shall 
superintend the carrying-out of the clauses of the present Annex, organise 
the repatriation of prisoners, and also determine the amount of their 
maintenance costs by reference to the accounts submitted at the time of the 
release of the prisoners by the party concerned. 

Article 10. 

The contracting Parties shall remit to prisoners of war and interned 
civilians, on their return to their own country, all punishments to which they 
may have been condemned for criminal acts committed for the benefit of the 
opposite party, and all disciplinary punishment of every kind. 

The amnesty shall not extend to persons who have committed a crime of the 
kind mentioned above, or a breach of discipline, after the signature of the 
Peace Treaty. 

Prisoners of war and interned civilians, sentenced by a criminal court for 
any crime not covered by the amnesty, before the ratification of the present 
Treaty, or after it but before the expiration of one year from the date of the 
ratification, shall not be repatriated until their punishment has been carried 
out. 

Those prisoners or interned civilians who have been prosecuted for 
criminal acts not covered by the amnesty, but upon whom no sentence has 
been passed within one year from the date of the ratification of the present 
Peace Treaty, shall be handed over to the authorities of their own country at 
the expiration of this period, together with all documents relating to the 
proceedings brought against them. 



171 

DOCUMENT NO. 46 

AGREEMENT BETWEEN GERMANY AND THE RUSSIAN 

SOCIALIST FEDERAL SOVIET REPUBLIC WITH REGARD TO THE 

MUTUAL REPATRIATION OF PRISONERS OF WAR AND 

INTERNED CIVILIANS 

(Berlin, 19 April 1920) 

SOURCES 

2LNTS66 

113 BFSP 1068 

NOTE 

This is another example of the attempt made by the new Russian Soviet 
Government to sort out with its European neighbors, and others, some of the 
problems arising out of the World War I (1914-1918) and the Russian 
Revolution (1917). (See also DOCUMENT NO. 38.) Here, the prisoners of 
war who were to be released were to be repatriated only "where they 
themselves desire it." Moreover, as in many of these treaties (see, for 
example, DOCUMENT NO. 45), there was an amnesty, a guarantee against 
the punishment of the repatriated prisoners of war by their own State, even if 
they had fought against it. For whatever such a provision is worth, it was 
unwisely omitted from the 1945 Yalta Agreement (DOCUMENT NO. 65), 
with devastating results. 

EXTRACTS 
Article 1. 

Prisoners of war and interned civilians of both sides are to be repatriated in 
all cases where they themselves desire it. The repatriation shall begin 
without delay, and shall be carried out with the utmost despatch. 

Both parties undertake to proceed rapidly with the repatriation by all the 
means at their disposal, and to make the necessary arrangements therefore. 

The exchange shall be carried out convoy for convoy. Each of the two 
contracting parties undertakes, as soon as the other party gives notice of the 
despatch of a convoy, to make all preparations to repatriate a convoy from its 
own side. 

Article 2. 

Each of the two parties undertakes the following: 

(1) All prisoners of war and interned civilians of the other party who are in 
their hands, and also such nationals of the other party as may have been 
granted furlough or released from military or civil detention, shall be granted 
adequate subsistence or facilities for earning the same till they are handed 
over to their own country or its representatives. 

(2) That it will forthwith officially notify any persons who are entitled to 
repatriation under the terms of Article I of this agreement. 

Article 3. 
"Russian Prisoners of War" within the meaning of this Agreement shall be 
held to include all Russians or former Russian subjects who have come into 



172 

German hands, whether fighting for the former Russian Empire or for the 
Russian Soviet Republic, or against the Russian Soviet Republic. 

Article 4. 
"German Prisoners of War" within the meaning of this Agreement shall be 
held to include all Germans or former subjects of the German Reich who have 
come into Russian hands fighting for the German Reich or against the 
Russian Soviet Republic. 

Note to Articles 3 and 4. 
Hostages on both sides shall be regarded as Prisoners of War within the 
meaning of this Agreement, and immediately repatriated. 

Article 5. 
Repatriation shall not be delayed by the fact that the individual entitled to 
it has accepted employment or has to fulfil some other legal engagement in 
the territory of the other contracting party. Compensation for engagements 
of this nature cannot be provided by either side. 

Article 6. 
No one shall be detained for the purpose of enquiry into or by reason of 
having been sentenced for any infraction of discipline or any political crimes 
and offences, in particular espionage. On the other hand persons presumably 
entitled to repatriation may be detained for trial and punishment for ordinary 
crimes until they have undergone all punishment to which they may be liable 
or until some further agreement shall have been entered into by the 
contracting parties. 

Article 7. 
Each of the two contracting parties guarantees indemnity from pun- 
ishment to those repatriated persons who may have taken action against the 
constitution of their state either by political agitation or by arms. 

Article 8. 
Until the carrying out of this Agreement each of the two parties shall be 
entitled to maintain in the territory of the other a welfare-centre for the 
purpose of preparing for repatriation and granting material assistance to 
those of its nationals who are returning. The extent of the duties of such 
welfare-centre shall be regulated by special agreements. 

Article 9. 
Both parties entrust the conduct of negotiations with such states as may be 
concerned in the passage of convoys to the International Red Cross at 
Geneva, which body shall also be responsible for the management and safety 
of the convoys during their passage through the territory of such states. Each 
of the contracting parties shall conclude a special agreement with the 
International Red Cross with regard to the expenses arising out of these 
proceedings. 



173 

Article 10. 
The calculation of all expenses arising from the carrying out of this 
Agreement and the settlement of all questions concerning the property of 
persons repatriated, the estates of those deceased, the exchange of lists of 
such persons, the notification of their place of burial and similar matters, shall 
be settled by a special agreement. 



174 



DOCUMENT NO. 47 



RULES OF AERIAL WARFARE DRAFTED BY AN INTERNATIONAL 

COMMISSION OF JURISTS ESTABLISHED BY THE 1922 
WASHINGTON DIPLOMATIC CONFERENCE ON THE LIMITATION 

OF ARMAMENT 
(The Hague, 19 February 1923) 

SOURCES 
17AJILSupp.245 
32 AJIL Supp. 1 
Greenspan, The Modern Law of Land Warfare 650 (1959) 

NOTE 
Although the Diplomatic Conference which convened in Washington in 
1922 had as its objective an agreement limiting armaments, during the course 
of its discussions it decided to create an International Commission of Jurists 
to study two subjects dealing not with limitations of armaments, but with the 
conduct of war: the use of radio telegraphy; and air warefare. The Com- 
mission, meeting at The Hague from November 1922 to February 1923, 
drafted a set of rules in each area. Neither set was ever included in any 
effective international document; but each has unquestionably had its impact 
on the evolution of its particular facet of the law of war. Much remains in the 
area of custom; but provisions of conventional law may be found in Article 
4A(4) of the 1949 Geneva Prisoner-of-War Convention (DOCUMENT NO. 
108) and in Article 42 of the 1977 Protocol I (DOCUMENT NO. 175). 

EXTRACTS 
Article 20 
When an aircraft has been disabled, the occupants when endeavoring to 
escape by means of parachute must not be attacked in the course of their 
descent. 

Article 36 

WTien an enemy military aircraft falls into the hands of a belligerent, the 
members of the crew and the passengers, if any, may be made prisoners of 
war. 

The same rule applies to the members of the crew and the passengers, if 
any, of an enemy public non-military aircraft, except that in the case of public 
non-military aircraft devoted exclusively to the transport of passengers, the 
passengers will be entitled to be released unless they are in the service of the 
enemy, or are enemy nationals fit for military service. 

If an enemy private aircraft falls into the hands of a belligerent, members of 
the crew who are enemy nationals or who are neutral nationals in the service 
of the enemy, may be made prisoners of war. Neutral members of the crew, 
who are not in the service of the enemy, are entitled to be released if they sign 
a written undertaking not to serve in any enemy aircraft while hostilities last. 



175 



Passengers are entitled to be released unless they are in the service of the 
enemy or are enemy nationals fit for military service, in which cases they may 
be made prisoners of war. 

Release may in any case be delayed if the military interests of the 
belligerent so require. 

The belligerent may hold as prisoners of war any member of the crew or 
any passenger whose service in a flight at the close of which he has been 
captured has been of special and active assistance to the enemy. 

Article 38 

Where under the provisions of Articles 36 and 37 it is provided that 
members of the crew or passengers may be made prisoners of war, it is to be 
understood that, if they are not members of the armed forces, they shall be 
entitled to treatment not less favorable than that accorded to prisoners of 
war. 

Article 43 

The personnel of a disabled belligerent military aircraft rescued outside 
neutral waters and brought into the jurisdiction of a neutral state by a neutral 
military aircraft and there landed shall be interned. 

Article 61 

The term "military" throughout these rules is to be read as referring to all 
branches of the forces, i.e. the land forces, the naval forces and the air forces. 

Article 62 

Except so far as special rules are here laid down and except also so far as 
the provisions of Chapter VII of these rules or international conventions 
indicate that maritime law and procedure are applicable, aircraft personnel 
engaged in hostilities come under the laws of war and neutrality applicable to 
land troops in virtue of the custom and practice of international law and of the 
various declarations and conventions to which the states concerned are 
parties. 



176 

DOCUMENT NO. 48 

GENEVA CONVENTION FOR THE AMELIORATION OF THE 
CONDITION OF THE WOUNDED AND SICK OF ARMIES 

IN THE FIELD 
(27 July 1929) 

SOURCES 
118LNTS303 
47 Stat. 2074 
2 Bevans 965 
130BFSP265 
27AJILSupp. 43 

NWC, 1950-1951, at 40 

NOTE 
This is the third of the series of four "Red Cross" conventions which have 
been widely accepted by the international community. It was preceded by the 
Convention of 1864 (DOCUMENT NO. 24) and that of 1906 (DOCUMENT 
NO. 32); and it has now been completely supplanted by the 1949 Convention 
of the same name (DOCUMENT NO. 106). 

EXTRACTS 
Article 1. 

Officers and soldiers and other persons officially attached to the armed 
forces who are wounded or sick shall be respected and protected in all 
circumstances; they shall be treated with humanity and cared for medically, 
without distinction of nationality , by the belligerent in whose power they may 
be. 

Nevertheless, the belligerent who is compelled to abandon wounded or sick 
to the enemy, shall, as far as military exigencies permit, leave with them a 
portion of his medical personnel and material to help with their treatment. 

Article 2. 

Except as regards the treatment to be provided for them in virtue of the 
preceding article, the wounded and sick of an army who fall into the hands of 
the enemy shall be prisoners of war, and the general provisions of in- 
ternational law concerning prisoners of war shall be applicable to them. 

Belligerents shall, however, be free to prescribe, for the benefit of 
wounded or sick prisoners, such arrangements as they may think fit beyond 
the limits of the existing obligations. 

Article 9. 

The personnel engaged exclusively in the collection, transport and 
treatment of the wounded and sick, and in the administration of medical 
formations and establishments, and chaplains attached to armies, shall be 
respected and protected under all circumstances. If they fall into the hands of 
the enemy they shall not be treated as prisoners of war. 



177 

Soldiers specially trained to be employed, in case of necessity, as auxiliary 
nurses or stretcher-bearers for the collection, transport and treatment of the 
wounded and sick, and furnished with a proof of identity, shall enjoy the same 
treatment as the permanent medical personnel if they are taken prisoners 
while carrying out these functions. 

Article 10. 

The personnel of Voluntary Aid Societies, duly recognised and authorised 
by their Government, who may be employed on the same duties as those of 
the personnel mentioned in the first paragraph of article 9, are placed on the 
same footing as the personnel contemplated in that paragraph, provided that 
the personnel of such societies are subject to military law and regulations. 

Each High Contracting Party shall notify to the other, either in time of 
peace or at the commencement of or during the course of hostilities, but in 
every case before actually employing them, the names of the societies which 
it has authorised, under its responsibility, to render assistance to the regular 
medical service of its armed forces. 

Article 11. 

A recognised society of a neutral country can only afford the assistance of 
its medical personnel and formations to a belligerent with the previous 
consent of its own Government and the authorisation of the belligerent 
concerned. 

The belligerent who accepts such assistance is bound to notify the enemy 
thereof before making any use of it. 

Article 12. 

The persons designated in articles 9, 10 and 11 may not be retained after 
they have fallen into the hands of the enemy. 

In the absence of an agreement to the contrary, they shall be sent back to 
the belligerent to which they belong as soon as a route for their return shall be 
open and military considerations permit. 

Pending their return they shall continue to carry out their duties under the 
direction of the enemy; they shall preferably be engaged in the care of the 
wounded and sick of the belligerent to which they belong. 

On their departure, they shall take with them the effects, instruments, 
arms and means of transport belonging to them. 

Article 13. 

Belligerents shall secure to the personnel mentioned in articles 9, 10 and 
11, while in their hands, the same food, the same lodging, the same 
allowances and the same pay as are granted to the corresponding personnel of 
their own armed forces. 

At the outbreak of hostilities the belligerents will notify one another of the 
grades of their respective medical personnel. 



178 

DOCUMENT NO. 49 

1929 GENEVA CONVENTION RELATIVE TO THE TREATMENT 

OF PRISONERS OF WAR 
(27 July 1929) 

SOURCES 
118LNTS343 
47 Stat. 2021 
2 Bevans 932 
130BFSP239 
27AJILSupp.59 

NWC, 1950-1951, at 49 

NOTE 
While the 1874 Declaration of Brussels (DOCUMENT NO. 27), the 1899 
Hague II Regulations (DOCUMENT NO. 28), and the 1907 Hague IV 
Regulations (DOCUMENT NO. 33) had all dealt with the subject of prisoners 
of war at some length, this was the first mutilateral convention drafted in 
peacetime which was concerned exclusively with prisoners of war. 
Unfortunately, when put to the test in World War II (1939-1945), it failed to 
provide solutions to many of the problems which had surfaced during World 
War I (1914-1918) and which had been the subject of specific provisions in the 
many bilateral and multilateral agreements entered into by the belligerents 
during the course of those hostilities. (For examples of such agreements, see 
DOCUMENT NO. 37 and DOCUMENT NO. 42.) It has now been completely 
replaced by the 1949 Geneva Prisoner-of-War Convention (DOCUMENT 
NO. 108). ' 

TEXT 
TITLE I. GENERAL PROVISIONS 
Article 1 
The present Convention shall apply, without prejudice to the stipulations 
of Title VII: 

1) To all persons mentioned in Articles 1, 2 and 3 of the Regulations 
annexed to the Hague Convention respecting the laws and customs of war on 
land, of October 18, 1907, and captured by the enemy. 

2) To all persons belonging to the armed forces of belligerent parties, 
captured by the enemy in the course of military operations at sea or in the air, 
except for such derogations as might be rendered inevitable by the conditions 
of capture. However, such derogations shall not infringe upon the 
fundamental principles of the present Convention; they shall cease from the 
moment when the persons captured have rejoined a prisoners-of-war camp. 

Article 2 
Prisoners of war are in the power of the hostile Power, but not of the 
individuals or corps who have captured them. 



179 

They must at all times be humanely treated and protected, particularly 
against acts of violence, insults and public curiosity. 

Measures of reprisal against them are prohibited. 

Article 3 

Prisoners of war have the right to have their person and their honor 
respected. Women shall be treated with all the regard due to their sex. 

Prisoners retain their full status. 

Article 4 

The Power detaining prisoners of war is bound to provide for their 
maintenance. 

Difference in treatment among prisoners is lawful only when it is based on 
the military rank, state of physical or mental health, professional 
qualifications or sex of those who profit thereby. 

TITLE II. CAPTURE 
Article 5 

Every prisoner of war is bound to give, if he is questioned on the subject, 
his true name and rank, or else his regimental number. 

If he infringes this rule, he is liable to have the advantages given to 
prisoners of his class curtailed. 

No. coercion may be used on prisoners to secure information relative to the 
condition of their army or country. Prisoners who refuse to answer may not 
be threatened, insulted, or exposed to unpleasant or disadvantageous 
treatment of any kind whatever. 

If, because of his physical or mental condition, a prisoner is unable to 
identify himself, he shall be turned over to the medical corps. 

Article 6 

All effects and objects of personal use — except arms, horses, military 
equipment and military papers — shall remain in the possession of prisoners 
of war, as well as metal helmets and gas masks. 

Money in the possession of prisoners may not be taken away from them 
except by order of an officer and after the amount is determined. A receipt 
shall be given. Money thus taken away shall be entered to the account of each 
prisoner. 

Identification documents, insignia of rank, decorations and objects of value 
may not be taken from prisoners. 

TITLE III. CAPTIVITY 

section i. evacuation of prisoners of war 

Article 7 

Prisoners of war shall be evacuated within the shortest possible period 
after their capture, to depots located in a region far enough from the zone of 
combat for them to be out of danger. 

Only prisoners who, because of wounds or sickness, would run greater 
risks by being evacuated than by remaining where they are may be 
temporarily kept in a dangerous zone. 

Prisoners shall not be needlessly exposed to danger while awaiting their 
evacuation from the combat zone. 



180 

Evacuation of prisoners on foot may normally be effected only by stages of 
20 kilometers a day, unless the necessity of reaching water and food depots 
requires longer stages. 

Article 8 

Belligerents are bound mutually to notify each other of their capture of 
prisoners within the shortest period possible, through the intermediary of 
the information bureaus, such as are organized according to Article 77. They 
are likewise bound to inform each other of the official addresses to which the 
correspondence of their families may be sent to prisoners of war. 

As soon as possible, every prisoner must be able to correspond with his 
family himself, under the conditions provided in Articles 36 et seq. 

As regards prisoners captured at sea, the provisions of the present article 
shall be observed as soon as possible after arrival at port. 
section ii. prisoners-of-war camps 
Article 9 

Prisoners of war may be interned in a town, fortress, or other place, and 
bound not to go beyond certain fixed limits. They may also be interned in 
enclosed camps; they may not be confined or imprisoned except as an 
indispensable measure of safety or sanitation, and only while the circum- 
stances which necessitate the measure continue to exist. 

Prisoners captured in unhealthful regions or where the climate is injurious 
for persons coming from temperate regions, shall be transported, as soon as 
possible, to a more favorable climate. 

Belligerents shall, so far as possible, avoid assembling in a single camp 
prisoners of different races or nationalities. 

No prisoner may, at any time, be sent into a region where he might be 
exposed to the fire of the combat zone, nor used to give protection from 
bombardment to certain points or certain regions by his presence. 

Chapter I. Installation of Camps 
Article 10 

Prisoners of war shall be lodged in buildings or in barracks affording all 
possible guarantees of hygiene and healthfulness. 

The quarters must be fully protected from dampness, sufficiently heated 
and lighted. All precautions must be taken against danger of fire. 

With regard to dormitories — the total surface, minimum cubic amount of 
air, arrangement and material of bedding — the conditions shall be the same 
as for the troops at base camps of the detaining Power. 

Chapter 2. Food and Clothing of Prisoners of War 

Article 11 

The food ration of prisoners of war shall be equal in quantity and quality to 
that of troops at base camps. 

Furthermore, prisoners shall receive facilities for preparing, themselves, 
additional food which they might have. 

A sufficiency of potable water shall be furnished them. The use of tobacco 
shall be permitted. Prisoners may be employed in the kitchens. 



181 

All collective disciplinary measures affecting the food are prohibited. 

Article 12 

Clothing, linen and footwear shall be furnished prisoners of war by the 
detaining Power. Replacement and repairing of these effects must be assured 
regularly. In addition, laborers must receive work clothes wherever the 
nature of the work requires it. 

Canteens shall be installed in all camps where prisoners may obtain, at the 
local market price, food products and ordinary objects. 

Profits made by the canteens for camp administrations shall be used for the 
benefit of prisoners. 

Chapter 3. Sanitary Service in Camps 
Article 13 

Belligerents shall be bound to take all sanitary measures necessary to 
assure the cleanliness and healthfulness of camps and to prevent epidemics. 

Prisoners of war shall have at their disposal, day and night, installations 
conforming to sanitary rules and constantly maintained in a state of 
cleanliness. 

Furthermore, and without prejudice to baths and showers with which the 
camp shall be as well provided as possible, prisoners shall be furnished a 
sufficient quantity of water for the care of their own bodily cleanliness. 

It shall be possible for them to take physical exercise and enjoy the open 
air. 

Article 14 

Every camp shall have an infirmary, where prisoners of war shall receive 
every kind of attention they need. If necessary, isolated quarters shall be 
reserved for the sick affected with contagious diseases. 

Expenses of treatment, including therein those of temporary prosthetic 
equipment, shall be borne by the detaining Power. 

Upon request, belligerents shall be bound to deliver to every prisoner 
treated an official statement showing the nature and duration of his illness as 
well as the attention received. 

It shall be lawful for belligerents reciprocally to authorize, by means of 
private arrangements, the retention in the camps of physicians and 
attendants to care for prisoners of their own country. 

Prisoners affected with a serious illness or whose condition necessitates an 
important surgical operation, must be admitted, at the expense of the 
detaining Power, to any military or civil medical unit qualified to treat them. 

Article 15 

Medical inspections of prisoners of war shall be arranged at least once a 
month. Their purpose shall be the supervision of the general state of health 
and cleanliness, and the detection of contagious diseases, particularly 
tuberculosis and venereal diseases. 

Chapter 4. Intellectual and Moral Needs of Prisoners of War 

Article 16 

Prisoners of war shall enjoy complete liberty in the exercise of their 
religion, including attendance at the services of their faith, on the sole 



182 



condition that they comply with the measures of order and police issued by 
the military authorities. 

Ministers of a religion, prisoners of war, whatever their religious 
denomination, shall be allowed to minister fully to members of the same 
religion. 

Article 17 
So are as possible, belligerents shall encourage intellectual diversions and 
sports organized by prisoners of war. 

Chapter 5. Internal Discipline of Camps 
Article 18 
Every camp of prisoners of war shall be placed under the command of a 
responsible officer. 

Besides the external marks of respect provided by the regulations in force 
in their armies with regard to their nationals, prisoners of war must salute all 
officers of the detaining Power. 

Officers who are prisoners of war are bound to salute only officers of a 
higher or equal rank of that Power. 

Article 19 
The wearing of insignia of rank and of decorations shall be permitted. 

Article 20 
Regulations, orders, notices and proclamations of every kind must be 
communicated to prisoners of war in a language which they understand. The 
same principle shall be applied in examinations. 

Chapter 6. Special Provisions Regarding Officers and Persons 

of Equivalent Status 
Article 21 
Upon the beginning of hostilities, belligerents shall be bound to com- 
municate to one another the titles and ranks in use in their respective armies, 
with a view to assuring equality of treatment between corresponding ranks of 
officers and persons of equivalent status. 

Officers and persons of equivalent status who are prisoners of war shall be 
treated with the regard due their rank and age. 

Article 22 
In order to assure service in officers' camps, soldiers of the same army who 
are prisoners of war and, wherever possible, who speak the same language, 
shall be assigned thereto, in sufficient numbers, considering the rank of the 
officers and persons of equivalent status. 

The latter shall secure their food and clothing from the pay which shall be 
granted them by the detaining Power. Administration of the mess-fund by 
the officers themselves must be facilitated in every way. 

Chapter 7. Financial Resources of Prisoners of War 

Article 23 
Subject to private arrangements between belligerent Powers, and 
particularly those provided in Article 24, officers and persons of equivalent 
status who are prisoners of war shall receive from the detaining Power the 



183 

same pay as officers of corresponding rank in the armies of that Power, on the 
condition, however, that this pay does not exceed that to which they are 
entitled in the armies of the country which they have served. This pay shall be 
granted them in full, once a month if possible, and without being liable to any 
deduction for expenses incumbent on the detaining Power, even when they 
are in favor of the prisoners. 

An agreement between the belligerents shall fix the rate of exchange 
applicable to this payment; in the absence of such an agreement, the rate 
adopted shall be that in force at the opening of hostilities. 

All payments made to prisoners of war as pay must be reimbursed at the 
end of hostilities, by the Power which they have served. 

Article 24 

Upon the outbreak of hostilities, the belligerents shall, by common 
agreement, fix the maximum amount of ready money which prisoners of war 
of various ranks and classes shall be allowed to keep in their possession. Any 
surplus taken or withheld from a prisoner shall be entered to his account, the 
same as any deposit of money effected by him, and may not be converted into 
another currency without his consent. 

Pay to the credit of their accounts shall be given to prisoners of war at the 
end of their captivity. 

During their imprisonment, facilities shall be granted them for the transfer 
of these amounts, in whole or in part, to banks or private persons in their 
country of origin. 

Chapter 8. Transfer of Prisoners of War 
Article 25 

Unless the conduct of military operations so requires, sick and wounded 
prisoners of war shall not be transferred as long as their recovery might be 
endangered by the trip. 

Article 26 

In case of transfer, prisoners of war shall be officially notified of their new 
destination in advance; they shall be allowed to take with them their personal 
effects, their correspondence and packages which have arrived for them. 

All due measures shall be taken that correspondence and packages 
addressed to their former camp may be forwarded to them without delay. 

Money deposited to the account of transferred prisoners shall be 
transmitted to the competent authority of their new place of residence. 

The expenses occasioned by the transfer shall be charged to the detaining 
Power. 

SECTION III. LABOR OF PRISONERS OF WAR 

Chapter 1. Generalities 
Article 27 
Belligerents may utilize the labor of able prisoners of war, according to 
their rank and aptitude, officers and persons of equivalent status excepted. 

However, if officers or persons of equivalent status request suitable work, 
it shall be secured for them so far as is possible. 

Noncommissioned officers who are prisoners of war shall only be required 



184 

to do supervisory work, unless they expressly request a remunerative 
occupation. 

Belligerents shall be bound, during the whole period of captivity, to allow 
to prisoners of war who are victims of accidents in connection with their work 
their enjoyment of the benefit of the provisions applicable to laborers of the 
same class according to the legislation of the detaining Power. With regard to 
prisoners of war to whom these legal provisions might not be applied by 
reason of the legislation of that Power, the latter undertakes to recommend to 
its legislative body all proper measures equitably to indemnify the victims. 

Chapter 2. Organization of the Labor 
Article 28 

The detaining Power shall assume entire responsibility for the main- 
tenance, care, treatment and payment of wages of prisoners of war working 
for the account of private persons. 

Article 29 

No prisoner of war may be employed at labors for which he is physically 
unfit. 

Article 30 

The length of the day's work of prisoners of war, including therein the trip 
going and returning, shall not be excessive and must not, in any case, exceed 
that allowed for the civil workers in the region employed at the same work. 
Every prisoner shall be allowed a rest of twenty-four consecutive hours every 
week, preferably on Sunday. 

Chapter 3. Prohibited Labor 
Article 31 

Labor furnished by prisoners of war shall have no direct relation with war 
operations. It is especially prohibited to use prisoners for manufacturing and 
transporting arms or munitions of any kind, or for transporting material 
intended for combatant units. 

In case of violation of the provisions of the preceding paragraph, prisoners, 
after executing or beginning to execute the order, shall be free to have their 
protests presented through the mediation of the agents whose functions are 
set forth in Articles 43 and 44, or, in the absence of an agent, through the 
mediation of representatives of the protecting Power. 

Article 32 

It is forbidden to use prisoners of war at unhealthful or dangerous work. 

Any aggravation of the conditions of labor by disciplinary measures is 
forbidden. 

Chapter 4. Labor Detachments 
Article 33 

The system of labor detachments must be similar to that of prisoners-of- 
war camps, particularly with regard to sanitary conditions, food, attention in 
case of accident or sickness, correspondence and the receipt of packages. 

Every labor detachment shall be dependent on a prisoners' camp. The 
commander of this camp shall be responsible for the observation, in the labor 
detachment, of the provisions of the present Convention. 



185 

Chapter 5. Wages 
Article 34 

Prisoners of war shall not receive wages for work connected with the 
administration, management and maintenance of the camps. 

Prisoners utilized for other work shall be entitled to wages to be fixed by 
agreements between the belligerents. 

These agreements shall also specify the part which the camp admin- 
istration may retain, the amount which shall belong to the prisoner of war and 
the manner in which that amount shall be put at his disposal during the period 
of his captivity. 

While awaiting the conclusion of the said agreements, payment for labor of 
prisoners shall be settled according to the rules given below: 

a) Work done for the State shall be paid for in accordance with the rates in 
force for soliders of the national army doing the same work, or, if none exists, 
according to a rate in harmony with the work performed. 

b ) When the work is done for the account of other public administrations or 
for private persons, conditions shall be regulated by agreement with the 
military authority. 

The pay remaining to the credit of the prisoners shall be delivered to him at 
the end of his captivity. In case of death, it shall be forwarded through the 
diplomatic channel to the heirs of the deceased. 

section iv. external relations of prisoners of war 

Article 35 

Upon the outbreak of hostilities, belligerents shall publish the measures 
provided for the execution of the provisions of this section. 

Article 36 

Each of the belligerents shall periodically determine the number of letters 
and postal cards per month which prisoners of war of the various classes shall 
be allowed to send, and shall inform the other belligerent of this number. 
These letters and cards shall be transmitted by post by the shortest route. 
They may not be delayed or retained for disciplinary reasons. 

Within a period of not more than one week after his arrival at the camp, and 
likewise in case of sickness, every prisoner shall be enabled to write his family 
a postal card informing it of his capture and of the state of his health. The said 
postal cards shall be forwarded as rapidly as possible and may not be delayed 
in any manner. 

As a general rule, correspondence of prisoners shall be written in their 
native language. Belligerents may allow correspondence in other languages. 

Article 37 

Prisoners of war shall be allowed individually to receive parcels by mail, 
containing foods and other articles intended to supply them with food or 
clothing. Packages shall be delivered to the addressees and a receipt given. 

Article 38 

Letters and consignments of money or valuables, as well as parcels by post 
intended for prisoners of war or dispatched by them, either directly, or by the 
mediation of the information bureaus provided for in Article 77, shall be 



186 

exempt from all postal duties in the countries of origin and destination, as well 
as in the countries they pass through. 

Presents and relief in kind for prisoners shall be likewise exempt from all 
import and other duties, as well as of payments for carriage by the State 
railways. 

Prisoners may, in cases of acknowledged urgency, be allowed to send 
telegrams, paying the usual charges. 

Article 39 

Prisoners of war shall be allowed to receive shipments of books indi- 
vidually, which may be subject to censorship. 

Representatives of the protecting Powers and duly recognized and 
authorized aid societies may send books and collections of books to the 
libraries of prisoners' camps. The transmission of these shipments to libraries 
may not be delayed under the pretext of censorship difficulties. 

Article 40 

Censorship of correspondence must be effected within the shortest 
possible time. Furthermore, inspection of parcels post must be effected 
under proper conditions to guarantee the preservation of the products which 
they may contain and, if possible, in the presence of the addressee or an agent 
duly recognized by him. 

Prohibitions of correspondence promulgated by the belligerents for 
military or political reasons, must be transient in character and as short as 
possible. 

Article 41 

Belligerents shall assure all facilities for the transmission of instruments, 
papers or documents intended for prisoners of war or signed by them 
particularly of powers of attorney and wills. 

They shall take the necessary measures to assure, in case of necessity, the 
authentication of signatures made by prisoners. 

section v. prisoners' relations with the authorities 

Chapter 1. Complaints of Prisoners of War because of the Conditions 

of Captivity 
Article 42 

Prisoners of war shall have the right to inform the military authorities in 
whose power they are of their requests with regard to the conditions of 
captivity to which they are subjected. 

They shall also have the right to address themselves to representatives of 
the protecting Powers to indicate to them the points on which they have 
complaints to formulate with regard to the conditions of captivity. 

These requests and complaints must be transmitted immediately. 

Even if they are recognized to be unfounded, they may not occasion any 
punishment. 

Chapter 2. Representatives of Prisoners of War 
Article 43 

In every place where there are prisoners of war, they shall be allowed to 



187 

appoint agents entrusted with representing them directly with military 
authorities and protecting Powers. 

This appointment shall be subject to the approval of the military authority. 

The agents shall be entrusted with the reception and distribution of 
collective shipments. Likewise, in case the prisoners should decide to 
organize a mutual assistance system among themselves, this organization 
would be in the sphere of the agents. Further, they may lend their offices to 
prisoners to facilitate their relations with the aid societies mentioned in 
Article 78. 

In camps of officers and persons of equivalent status, the senior officer 
prisoner of the highest rank shall be recognized as intermediary between the 
camp authorities and the officers and persons of equivalent status who are 
prisoners. For this purpose, he shall have the power to appoint a prisoner 
officer to assist him as an interpreter during the conferences with the camp 
authorities. 

Article 44 

When the agents are employed as laborers, their activity as represen- 
tatives of prisoners of war must be counted in the compulsory period of labor. 

All facilities shall be accorded the agents for their intercourse with the 
military authorities and with the protecting Power. This intercourse shall not 
be limited. 

No representative of the prisoners may be transferred without the 
necessary time being allowed him to inform his successors about affairs under 
consideration. 

Chapter 3. Penalties Applicable to Prisoners of War 

1. General Provisions 

Article 45 

Prisoners of war shall be subject to the laws, regulations, and orders in 
force in the armies of the detaining Power. 

An act of insubordination shall justify the adoption towards them of the 
measures provided by such laws, regulations and orders. 

The provisions of the present chapter, however, are reserved. 

Article 46 

Punishments other than those provided for the same acts for soldiers of the 
national armies may not be imposed upon prisoners of war by the military 
authorities and courts of the detaining Power. 

Rank being identical, officers, noncommissioned officers or soldiers who 
are prisoners of war undergoing a disciplinary punishment, shall not be 
subject to less favorable treatment than that provided in the armies of the 
detaining Power with regard to the same punishment. 

Any corporal punishment, any imprisonment in quarters without daylight 
and, in general, any form of cruelty, is forbidden. 

Collective punishment for individual acts is also forbidden. 

Article 47 

Acts constituting an offense against discipline, and particularly attempted 
escape, shall be verified immediately; for all prisoners of war, commissioned 



188 

or not, preventive arrest shall be reduced to the absolute minimum. 

Judicial proceedings against prisoners of war shall be conducted as rapidly 
as the circumstances permit; preventive imprisonment shall be limited as 
much as possible 

In all cases, the duration of preventive imprisonment shall be deducted 
from the disciplinary or judicial punishment inflicted, provided that this 
deduction is allowed for national soldiers. 

Article 48 

Prisoners of war may not be treated differently from other prisoners after 
having suffered the judicial or disciplinary punishment which has been 
imposed on them. 

However, prisoners punished as a result of attempted escape may be 
subjected to special surveillance, which, however, may not entail the sup- 
pression of guarantees granted prisoners by the present Convention. 

Article 49 

No prisoner of war may be deprived of his rank by the detaining Power. 

Prisoners given disciplinary punishment may not be deprived of the 
prerogatives attached to their rank. In particular, officers and persons of 
equivalent status who suffer punishment involving deprivation of liberty 
shall not be placed in the same quarters as non-commissioned officers or 
privates being punished. 

Article 50 

Escaped prisoners of war who are retaken before being able to rejoin their 
own army or to leave the territory occupied by the army which captured them 
shall be liable only to disciplinary punishment. 

Prisoners who, after having succeeded in rejoining their army or in leaving 
the territory occupied by the army which captured them, may again be taken 
prisoners, shall not be liable to any punishment on account of their previous 
flight. 

Article 51 

Attempted escape, even if it is a repetition of the offense, shall not be 
considered as an aggravating circumstance in case the prisoner of war should 
be given over to the courts on account of crimes or offenses against persons or 
property committed in the course of that attempt. 

After an attempted or accomplished escape, the comrades of the person 
escaping who assisted in the escape, may incur only disciplinary punishment 
on this account. 

Article 52 

Belligerents shall see that the competent authorities exercise the greatest 
leniency in deciding the question of whether an infraction committed by a 
prisoner of war should be punished by disciplinary or judicial measures. 

This shall be the case especially when it is a question of deciding on acts in 
connection with escape or attempted escape. 

A prisoner may not be punished more than once because of the same act or 
the same count. 



189 

Article 53 

No prisoner of war on whom a disciplinary punishment has been imposed, 
who might be eligible for repatriation, may be kept back because he has not 
undergone the punishment. 

Prisoners to be repatriated who might be threatened with a penal 
prosecution may be excluded from repatriation until the end of the pro- 
ceedings and, if necessary, until the completion of the punishment; those who 
might already be imprisoned by reason of a sentence may be detained until 
the end of their imprisonment. 

Belligerents shall communicate to each other the lists of those who may not 
be repatriated for the reasons given in the preceding paragraph. 

2. Disciplinary Punishments 
Article 54 

Arrest is the most severe disciplinary punishment which may be imposed 
on a prisoner of war. 

The duration of a single punishment may not exceed thirty days. 

This maximum of thirty days may not, further, be exceeded in the case of 
several acts for which the prisoner has to undergo discipline at the time when 
it is ordered for him, whether or not these acts are connected. 

When, during or after the end of a period of arrest, a prisoner shall have a 
new disciplinary punishment imposed upon him, a space of at least three days 
shall separate each of the periods of arrest, if one of them is ten days or more. 

Article 55 

Subject to the provisions given in the last paragraph of Article 11, food 
restrictions allowed in the armies of the detaining Power are applicable, as an 
increase in punishment, to prisoners of war given disciplinary punishment. 

However, these restrictions may be ordered only if the state of health of 
the prisoners punished permits it. 

Article 56 

In no case may prisoners of war be transferred to penitentiary estab- 
lishments (prisons, penitentiaries, convict prisons, etc.) there to undergo 
disciplinary punishment. 

The quarters in which they undergo disciplinary punishment shall conform 
to sanitary requirements. 

Prisoners punished shall be enabled to keep themselves in a state of 
cleanliness. 

These prisoners shall every day be allowed to exercise or to stay in the open 
air at least two hours. 

Article 57 

Prisoners of war given disciplinary punishment shall be allowed to read and 
write, as well as to send and receive letters. 

On the other hand, packages and money sent may be not delivered to the 
addressees until the expiration of the punishment. If the packages not 
distributed contain perishable products, these shall be turned over to the 
camp infirmary or kitchen. 



190 



Article 58 
Prisoners of war given disciplinary punishment shall be allowed, on their 
request, to be present at the daily medical inspection. They shall receive the 
care considered necessary by the doctors and, if necessary, shall be removed 
to the camp infirmary or to hospitals. 

Article 59 
Excepting the competence of courts and higher military authorities, 
disciplinary punishment may be ordered only by an officer provided with 
disciplinary powers in his capacity as commander of a camp or detachment, or 
by the responsible officer replacing him. 

3. Judicial Suits 

Article 60 

At the opening of a judicial proceeding directed against a prisoner of war, 

the detaining Power shall advise the representative of the protecting Power 

thereof as soon as possible, and always before the date set for the opening of 

the trial. 

This advice shall contain the following information: 

a ) Civil state and rank of prisoner; 

b) Place of sojourn or imprisonment; 

c) Specification of the count or counts of the indictment, giving the legal 
provisions applicable. 

If it is not possible to mention in that advice the court which will pass upon 
the matter, the date of opening the trial and the place where it will take place, 
this information must be furnished to the representative of the protecting 
Power later, as soon as possible, and at all events, at least three weeks before 
the opening of the trial. 

Article 61 

No prisoner of war may be sentenced without having had an opportunity to 
defend himself. 

No prisoner may be obliged to admit himself guilty of the act of which he is 
accused. 

Article 62 

The prisoner of war shall be entitled to assistance by a qualified counsel of 
his choice, and, if necessary, to have recourse to the services of a competent 
interpreter. He shall be advised of his right by the detaining Power, in due 
time before the trial. 

In default of a choice by the prisoner, the protecting Power may obtain a 
counsel for him. The detaining Power shall deliver to the protecting Power, 
on its request, a list of persons qualified to present the defense. 

Representatives of the protecting Power shall be entitled to attend the 
trial of the case. 

The only exception to this rule is the case where the trial of the case must be 
secret in the interest of the safety of the State. The detaining Power should so 
advise the protecting Power. 

Article 63 

Sentence may be pronounced against a prisoner of war only by the same 



191 

courts and according to the same procedure as in the case of persons 
belonging to the armed forces of the detaining Power. 

Article 64 
Every prisoner of war shall have the right of appeal against any sentence 
rendered with regard to him, in the same way as individuals belonging to the 
armed forces of the detaining Power. 

Article 65 
Sentences pronounced against prisoners of war shall be communicated to 
the protecting Power immediately. 

Article 66 
If the death penalty is pronounced against a prisoner of war, a com- 
munication setting forth in detail the nature and circumstances of the offense 
shall be sent as soon as possible to the representative of the protecting 
Power, for transmission to the Power in whose armies the prisoner served. 

The sentence shall not be executed before the expiration of a period of at 
least three months after this communication. 

Article 67 
No prisoner of war may be deprived of the benefit of the provisions of 
Article 42 of the present Convention as a result of a sentence or otherwise. 

TITLE IV. TERMINATION OF CAPTIVITY 

section i. direct repatriation and hospitalization 

in a neutral country 

Article 68 

Belligerents are bound to send back to their own country, regardless of 

rank or number, seriously sick and seriously injured prisoners of war, after 

having brought them to a condition where they can be transported. 

Agreements between belligerents shall accordingly settle as soon as 
possible the cases of invalidity or of sickness, entailing direct repatriation, as 
well as the cases entailing possible hospitalization in a neutral country. While 
awaiting the conclusion of these agreements, belligerents may have 
reference to the model agreement annexed, for documentary purposes, to the 
present Convention. 

Article 69 
Upon the outbreak of hostilities, belligerents shall come to an agreement to 
name mixed medical commissions. These commissions shall be composed of 
three members, two of them belonging to a neutral country and one appointed 
by the detaining Power; one of the physicians of the neutral country shall 
preside. These mixed medical commissions shall proceed to the examination 
of sick or wounded prisoners and shall make all due decisions regarding them. 
Decisions of these commissions shall be by majority and carried out with 
the least possible delay. 

Article 70 
Besides those who are designated by the camp physician, the following 
prisoners of war shall be inspected by the mixed medical Commission 
mentioned in Article 69, with a view to their direct repatriation or their 



192 

hospitalization in a neutral country: 

a) Prisoners who make such a request directly of the camp physician; 

b) Prisoners who are presented by the agents provided for in Article 43, 
acting on their own initiative or at the request of the prisoners themselves; 

c) Prisoners who have been proposed by the Power in whose armies they 
have served or by an aid society duly recognized and authorized by that 
Power. 

Article 71 

Prisoners of war who are victims of accidents in connection with work, 
except those voluntarily injured, shall enjoy the benefit of the same 
provisions, as far as repatriation or possible hospitalization in a neutral 
country are concerned. 

Article 72 

Throughout the duration of hostilities and for humane considerations, 
belligerents may conclude agreements with a view to the direct repatriation 
or hospitalization in a neutral country of able-bodied prisoners of war who 
have undergone a long period of captivity. 

Article 73 

The expenses of repatriation or of transportation to a neutral country of 
prisoners of war shall be borne, from the frontiers of the detaining Power, by 
the Power in whose armies the prisoners have served. 

Article 74 

No repatriated person may be utilized in active military service. 

Article 75 

When belligerents conclude a convention of armistice, they must, in 
principle, have appear therein stipulations regarding the repatriation of 
prisoners of war. If it has not been possible to insert stipulations in this 
regard in such convention, belligerents shall nevertheless come to an 
agreement in this regard as soon as possible. In any case, repatriation of 
prisoners shall be effected with the least possible delay after the conclusion of 
peace. 

Prisoners of war against whom a penal prosecution might be pending for a 
crime or an offense of municipal law may, however, be detained until the end 
of the proceedings and, if necessary, until the expiration of the punishment. 
The same shall be true of those sentenced for a crime or offense of municipal 
law. 

On agreement between the belligerents, commissions may be estab- 
lished for the purpose of searching for dispersed prisoners and assuring their 
repatriation. 

TITLE V. DEATH OF PRISONERS OF WAR 
Article 76 
Wills of prisoners of war shall be received and drawn up in the same way as 
for soldiers of the national army. 

The same rules shall be observed regarding death certificates. 
Belligerents shall see that prisoners of war dying in captivity are honorably 



193 

buried and that the graves bear all due information, are respected and 
properly maintained. 

TITLE VI. BUREAUS OF RELIEF AND INFORMATION 

CONCERNING PRISONERS OF WAR 

Article 77 

Upon the outbreak of hostilities, each of the belligerent Powers, as well as 
the neutral Powers which have received belligerents, shall institute an official 
information bureau for prisoners of war who are within their territory. 

Within the shortest possible period, each of the belligerent Powers shall 
inform its information bureau of every capture of prisoners effected by its 
armies, giving it all the information regarding identity which it has, allowing 
it quickly to advise the families concerned, and informing it of the official 
addresses to which families may write to prisoners. 

The information bureau shall immediately forward all this information to 
the interested Powers, through the intervention, on one hand, of the 
protecting Powers and, on the other, of the central agency provided for in 
Article 79. 

The information bureau, being charged with replying to all inquiries about 
prisoners of war, shall receive from the various services concerned full 
information respecting internments, and transfers, release on parole, re- 
patriations, escapes, stays in hospitals, deaths, as well as other information 
necessary to enable it to make out and keep up to date an individual return for 
each prisoner of war. 

The bureau shall state in this return, in so far as is possible and subject to 
the provisions of Article 5: the regimental number, given names and 
surname, date and place of birth, rank and unit of the interested party, the 
given name of the father and the name of the mother, the address of the 
person to be advised in case of accident, wounds, date and place of capture, 
internment, wounding and death, as well as any other important information. 

Weekly lists containing all new information likely to facilitate the 
identification of each prisoner shall be transmitted to the interested Powers. 

At the conclusion of peace the individual return of the prisoner of war shall 
be delivered to the Power which he served. 

The information bureau shall further be bound to receive all objects of 
personal use, valuables, letters, pay vouchers, identification marks, etc., 
which are left by prisoners of war who have been repatriated, released on 
parole, escaped or died, and to transmit them to the countries interested. 

Article 78 

Relief societies for prisoners of war, which are properly constituted in 
accordance with the laws of their country and with the object of serving as the 
channel for charitable effort, shall receive from the belligerents, for 
themselves and their duly accredited agents, every facility for the efficient 
performance of their humane task within the bounds imposed by military 
necessities. Agents of these societies may be admitted to the camps for the 
purpose of distributing relief, as also to the halting places of repatriated 



194 

prisoners, if furnished with a personal permit by the military authorities, and 
on giving an undertaking in writing to comply with all measures of order and 
police which the latter may issue. 

Article 79 

A central information agency for prisoners of war shall be created in a 
neutral country. The International Committee of the Red Cross shall propose 
the organization of such an agency to the interested Powers, if it considers it 
necessary. 

The function of that agency shall be to centralize all information respecting 
prisoners, which it may obtain through official or private channels; it shall 
transmit it as quickly as possible to the country of origin of the prisoners or to 
the Power which they have served. 

These provisions must not be interpreted as restricting the humanitarian 
activity of the International Committee of the Red Cross. 

Article 80 

Information bureaus shall enjoy the privilege of free postage on postal 
matter, as well as all exemptions provided in Article 38. 

TITLE VII. APPLICATION OF THE CONVENTION TO CERTAIN 

CLASSES OF CIVILIANS 
Article 81 
Individuals who follow armed forces without directly belonging thereto, 
such as newspaper correspondents and reporters, sutlers, contractors, who 
fall into the enemy's hands and whom the latter thinks expedient to detain, 
shall be entitled to be treated as prisoners of war, provided they are in 
possession of a certificate from the military authorities of the armed forces 
which they were accompanying. 

TITLE VII. EXECUTION OF THE CONVENTION 
section i. general provisions 
Article 82 
The provisions of the present Convention must be respected by the High 
Contracting Parties under all circumstances. 

In case, in time of war, one of the belligerents is not a party to the 
Convention, its provisions shall nevertheless remain in force as between the 
belligerents who are parties thereto. 

Article 83 
The High Contracting Parties reserve the right to conclude special 
conventions on all questions relative to prisoners of war, on which it seems to 
them expedient to have particular regulations. 

Prisoners of war shall receive the benefit of these agreements until the 
completion of repatriation, except in the case of express stipulations to the 
contrary contained in the above-mentioned agreements or in later 
agreements, or also except in the case of more favorable measures taken by 
one or the other of the belligerent Powers respecting the prisoners which 
they hold. 



195 

In order to assure the reciprocal application of the stipulations of the 
present Convention, and to facilitate the conclusion of the special conventions 
provided for above, belligerents may, upon the commencement of hostilities, 
authorize meetings of representatives of the respective authorities charged 
with the administration of prisoners of war. 

Article 84 

The text of the present Convention and of the special conventions provided 
for in the foregoing article, shall be posted, wherever possible in the native 
language of the prisoners of war, in places where it may be consulted by all 
the prisoners. 

The text of these conventions shall be communicated to prisoners who find 
it impossible to get the information from the posted text, upon their request. 

Article 85 

The High Contracting Parties shall communicate to one another through 
the Swiss Federal Council, the official translations of the present Convention, 
as well as of the laws and regulations which they may come to adopt to assure 
the application of the present Convention. 

section ii. organization of control 
Article 86 

The High Contracting Parties recognize that the regular application of the 
present Convention will find a guaranty in the possibility of collaboration of 
the protecting Powers charged with safeguarding the interests of bellig- 
erents; in this respect, the protecting Powers may, besides their diplomatic 
personnel, appoint delegates from among their own nationals or from among 
the nationals of other neutral Powers. These delegates must be subject to the 
approval of the belligerent near which they exercise their mission. 

Representatives of the protecting Power or its accepted delegates shall be 
permitted to go to any place, without exception, where prisoners of war are 
interned. They shall have access to all places occupied by prisoners and may 
interview them, as a general rule without witnesses, personally or through 
interpreters. 

Belligerents shall so far as possible facilitate the task of representatives or 
accepted delegates of the protecting Power. The military authorities shall be 
informed of their visit. 

Belligerents may come to an agreement to allow persons of the same 
nationality as the prisoners to be permitted to take part in inspection trips. 

Article 87 

In case of disagreement between the belligerents as to the application of 
the provisions of the present Convention, the protecting Powers must, in so 
far as possible, lend their good offices for the purpose of settling the 
difference. 

For this purpose, each of the protecting Powers may, in particular, suggest 
to the interested belligerents a meeting of representatives thereof, possibly 
upon a neutral territory suitably chosen. Belligerents shall be bound to 
accede to proposals in this sense which are made to them. The protecting 
Power may, if occasion arises, submit for the approval of the Powers 



196 



concerned a person belonging to a neutral Power or a person delegated by the 
International Committee of the Red Cross, who shall be summoned to take 
part in this meeting. 

Article 88 

The foregoing provisions are not an obstacle to the humanitarian activity 
which the International Committee of the Red Cross may use for the 
protection of prisoners of war, with the consent of the interested belligerents. 

section iii. final provisions 
Article 89 

In the relations between powers bound by the Hague Convention re- 
specting the Laws and Customs of War on Land, whether it is a question of 
that of July 29, 1899, or that of October 18, 1907, and who participate in the 
present Convention, this latter shall complete Chapter II of the Regulations 
annexed to the said Hague Conventions. 

Article 90 

The present Convention, which will bear this day's date, may be signed up 
to February 1, 1930, on behalf of all the countries represented at the 
Conference which opened at Geneva July 1, 1929. 

Article 91 

The present Convention shall be ratified as soon as possible. 

The ratifications shall be deposited at Berne. 

A record of the deposit of each instrument of ratification shall be prepared, 
a duly certified copy of which shall be forwarded by the Swiss Federal Council 
to the Governments of all the countries on whose behalf the Convention has 
been signed or notification of adherence made. 

Article 92 

The present Convention shall become effective six months after the deposit 
of at least two instruments of ratification. 

Subsequently, it shall become effective for each High Contracting Party 
six months after the deposit of its instrument of ratification. 

Article 93 

From the date on which it becomes effective, the present Convention shall 
be open for adherences given on behalf of any country in whose name this 
Convention was not signed. 

Article 94 

Adherences shall be given by written notification addressed to the Swiss 
Federal Council and shall take effect six months after the date of their 
receipt. 

The Swiss Federal Council shall communicate adherences to the 
Governments of all the countries on whose behalf the Convention was signed 
or notification of adherence made. 

Article 95 

A state of war shall give immediate effect to ratifications deposited and to 
adherences notified by belligerent Powers prior to or after the outbreak of 
hostilities. The communications of ratifications or adherences received from 



197 

Powers at war shall be made by the Swiss Federal Council by the most rapid 
method. 

Article 96 

Each of the High Contracting Parties shall have the right to denounce the 
present Convention. The denunciation shall not take effect until one year 
after notification has been made in writing to the Swiss Federal Council. The 
latter shall communicate such notification to the Governments of all the High 
Contracting Parties. 

The denunciation shall have effect only with respect to the High Con- 
tracting Party which gave notification thereof. 

Moreover, such denunciation shall not take effect during a war in which the 
denouncing Power is involved. In this case, the present Convention shall 
continue in effect, beyond the period of one year, until the conclusion of peace, 
and, in any event, until the processes of repatriation are completed. 

Article 97 

A duly certified copy of the present Convention shall be deposited in the 
archives of the League of Nations by the Swiss Federal Council. Likewise, 
ratifications, adherences, and denunciations of which the Swiss Federal 
Council shall be notified, shall be communicated by it to the League of 
Nations. 

Annex to the Convention of July 27, 1929 Relative 

to the Treatment of Prisoners of War 

model agreement concerning direct repatriation and 

hospitalization in a neutral country of prisoners of war for 

reasons of health 
1. Governing Principles for Direct Repatriation and Hospitalization 

in a Neutral Country 
A. Direct Repatriation 
There shall be repatriated directly: 

1. Sick and wounded who, according to medical opinion, are not likely to 
recover in one year, their condition requiring treatment and their mental or 
physical fitness appearing to have suffered considerable diminution; 

2. Incurable sick and wounded whose mental or physical fitness appears to 
have suffered considerable diminution; 

3. Cured sick and wounded whose mental or physical fitness appears to 
have suffered considerable diminution. 

B. Hospitalization in a Neutral Country 
There shall be placed in hospitals: 

1. Sick and wounded whose cure within a period of one year is to be 
expected, such cure appearing more certain and more rapid if the sick and 
wounded are given the benefit of the resources offered by the neutral country 
than if their captivity properly so-called is prolonged; 

2. Prisoners of war whose mental or physical health appears, according to 
medical opinion, to be seriously menaced by continuance in captivity, while 
hospitalization in a neutral country would probably remove this danger. 



198 

C. REPATRIATION OF THOSE HOSPITALIZED IN A NEUTRAL COUNTRY 

There shall be repatriated the prisoners of war hospitalized in a neutral 
country who belong to the following categories: 

1. Those whose state of health appears to be or to be becoming such that 
they fall within the categories of persons eligible to repatriation for reasons of 
health; 

2. The recovered whose mental or physical fitness seems to have suffered a 
considerable diminution. 

//. Special Principles for Direct Repatriation or Hospitalization 

in a Neutral Country 
A. Repatriation 
There shall be repatriated: 

1. All prisoners of war who, as the result of organic injuries, have the 
following impairments, actual or functional: loss of a member, paralysis, 
articular or other defects, provided that the loss is at least a foot or a hand, or 
is equivalent to the loss of a foot or a hand; 

2. All wounded or injured prisoners of war whose condition is such that it 
renders them invalids whose cure, within a period of one year, can not be 
anticipated from a medical standpoint; 

3. All the sick whose condition is such that it renders them invalids whose 
cure, within a period of one year, can not be anticipated from a medical 
standpoint; 

The following, in particular, belong to this category: 

a) Progressive tuberculosis of any organs which, according to medical 
opinion, can no longer be cured or at least considerably improved by a course 
of treatment in a neutral country. 

b) Nontubercular affections of the respiratory organs presumed incurable 
(such as, above all, strongly developed pulmonary emphysema, with or 
without bronchitis, bronchiectasis, serious asthma, gas poisoning, etc.); 

c) Serious chronic affections of the organs of circulation (for example: 
valvular affections with tendencies to disorders of compensation, relatively 
serious affections of the myocardium, pericardium of the vessels, especially 
inoperable aneurisms of the large vessels, etc.); 

d) Serious chronic affections of the digestive organs; 

e) Serious chronic affections of the urinary and sexual organs (particularly, 
for example: all cases of confirmed chronic nephritis with complete 
semiology, and most especially when cardiac and vascular impairments 
already exist; likewise, pyelites and chronic cystitis, etc.); 

f) Serious chronic diseases of the central and peripheral nervous system 
(such as, particularly, serious neurasthenia and hysteria, all unquestionable 
cases of epilepsy, serious cases of Basedow's disease, etc.); 

g) Blindness in both eyes, or in one eye when the vision of the other 
remains below 1 in spite of the use of corrective glasses; reduction in 
acuteness of vision in case it is impossible to restore it by correction to the 
acuteness of Vfe for one eye at least; other ocular affections coming in the 
present class (glaucoma, iritis, choroiditis, etc.); 



199 



h) Total deafness in both ears, as well as total deafness in one ear in case 
the partially deaf ear does not discern the ordinary spoken voice at a distance 
of one meter; 

i) All unquestionable cases of mental affections; 

k) All serious cases of chronic poisoning by metals or other causes (lead 
poisoning, mercury poisoning, morphinism, cocainism, alcoholism, gas 
poisoning, etc.); 

I) Chronic affections of the organs of locomotion (arthritis deformans, 
gout, rheumatism with impairments clinically discoverable), provided they 
are serious; 

m) All malignant growths, if they are not amenable to relatively minor 
operations without endangering the life of the patient; 

n) All cases of malaria with noticeable organic changes (important chronic 
increases in size of the liver, of the spleen, cachexia, etc.); 

o) Serious chronic cutaneous affections, in so far as their nature does not 
constitute a medical indication for hospitalization in a neutral country; 

p) Serious avitaminoses (beri-beri, pellagra, chronic scurvy). 

B. Hospitalization 

Prisoners of war must be hospitalized if they have the following affections: 

1. All forms of tuberculosis of any organs whatever if, according to present 
medical knowledge, they may be cured, or at least considerably improved by 
methods applicable in a neutral country (altitude, treatment in sanatoria, 
etc.); 

2. All forms — necessitating treatment — of affections of the respiratory, 
circulatory, digestive, genito-urinary, and nervous organs, of organs of the 
senses, of the locomotor and cutaneous apparatus provided, however, that 
the forms of these affections do not belong to the categories requiring direct 
repatriation, or are not acute diseases properly so-called susceptible to a 
complete cure. The affections contemplated in this paragraph are those which 
offer really better chances of cure for the patient by the application of means 
of treatment available in a neutral country than if he were treated in 
captivity. 

Nervous troubles, the efficient or determinant causes of which are the 
events of the war or even of the captivity itself, such as the psychasthenia of 
prisoners of war and other analogous cases, should be given special 
consideration. 

All duly verified cases of this kind should be hospitalized, provided that the 
seriousness or constitutional character thereof does not make them cases for 
direct repatriation. 

Cases of psychasthenia of prisoners of war which are not cured after three 
months of hospitalization in a neutral country or which, after this period has 
expired, are not obviously on the road to final recovery, should be 
repatriated. 

3. All cases of wounds or lesions and their consequences which offer better 
chances of cure in a neutral country than in captivity, provided that these 



200 



cases are not either eligible for direct repatriation or else are insignificant; 

4. All cases of malaria, duly verified and not presenting organic changes 
clinically discoverable (chronic enlargement of the liver, of the spleen, 
cachexia, etc.), if the stay in a netural country offers particularly favorable 
prospects of final cure; 

5. All cases of poisoning (particularly by gases, metals, alkaloids) for which 
the prospects of cure in a neutral country are especially favorable. 

There shall be excluded from hospitalization: 

1. All duly verified cases of mental affections; 

2. All organic or functional nervous affections reputed to be incurable; 
(These two categories belong to those giving a right to direct repatriation.) 

3. Serious chronic alcoholism; 

4. All contagious affections during the period in which they are trans- 
missible (acute infectious diseases, primary and secondary syphilis, 
trachoma, leprosy, etc.). 

///. General Observations 

The conditions given above should, generally speaking, be interpreted and 
applied in as broad a spirit as possible. 

This breadth of interpretation should be especially applied to neuropathic 
or psychopathic conditions caused or brought to a head by the events of the 
war or even of the captivity itself (psychasthenia of prisoners of war), and also 
to cases of tuberculosis in all degrees. 

It is needless to state that camp physicians and the mixed medical 
commissions may find themselves confronted with a great number of cases 
not mentioned among the examples given under Section II, or cases not 
fitting in with these examples. The examples mentioned above are given only 
as typical examples; an analogous list of examples of surgical alterations has 
not been drawn up because, with the exception of cases incontestable by their 
very nature (amputations), it is difficult to make a list of particular types; 
experience has shown that a recital of these particular cases was not without 
disadvantages in practice. 

All cases of not fitting exactly into the examples cited shall be decided by 
invoking the spirit of the above governing principles. 



201 

DOCUMENT NO. 50 

ARMISTICE AGREEMENT BETWEEN THE CHIEF OF THE 

GERMAN HIGH COMMAND AND FRENCH PLENIPOTENTIARIES 

(Forest of Compiegne, 22 June 1940) 

SOURCES 
9 Documents on German Foreign Policy, 
1918-1945, at 671 
144BFSP402 
34 AJIL Supp. 173 
2 Documents on American Foreign Relations, 
July 1939-June 1940, at 247 

NOTE 
This is the armistice agreement which ended France's official participation 
in the hostilities of World War II (1939-1945). On Hitler's instructions it was 
signed in the same place and in the same railroad car in which the 1918 
Armistice Agreement ending World War I (1914-1918) (DOCUMENT NO. 
41) had been signed. Once again, like the agreement just mentioned, and like 
most other armistice agreements where there is a victor and a vanquished, 
the repatriation of prisoners of war was strictly unilateral, German prisoners 
of war held by the French to be repatriated immediately, but French 
prisoners of war held by the Germans to remain such until the conclusion of 
peace. 

EXTRACTS 

10. The French Government undertakes not to engage in any hostile 
actions with any part of the armed forces left to it, or in any other way, 
against the German Reich. 

The French Government will also prevent members of the French armed 
forces from leaving the country and arms and war material of any kind, ships, 
aircraft, etc. , from being moved to England or to any other foreign country. 

The French Government will forbid French nationals to fight against the 
German Reich in the service of states with which Germany is still at war. 
French nationals who act contrary to this prohibition will be treated by 
German troops as francs-tireurs [Freischdrler]. 

19. All German prisoners of war and civilian prisoners in French custody, 
including detained or convicted persons who have been arrested and 
sentenced for acts committed in the interests of the German Reich are to be 
handed over immediately to the German troops. 

The French Government is obligated to hand over on demand all Germans 
in France, in the French possessions, colonies, protectorates, and mandated 
territories who are named by the German Government. 

The French Government undertakes to prevent German prisoners of war 
or civilian prisoners from being removed from France to French possessions 



202 

or abroad. Correct lists are to be supplied of prisoners already removed from 
France as well as of sick and wounded German prisoners of war unfit for 
travel, with particulars of their whereabouts. The German High Command 
will take over the care of German sick and wounded prisoners of war. 

20. Members of the French armed forces who are prisoners of war in 
German hands shall remain prisoners of war until the conclusion of peace. 



203 

DOCUMENT NO. 51 

REGULATIONS PERTAINING TO PRISONERS OF WAR: 

TRANSLATION OF A COLLECTION OF ORDERS ISSUED BY THE 

SUPREME COMMAND OF THE WEHRMACHT 



SOURCE 
National Archives of the United States 

NOTE 
This is a collection of orders of the Supreme Command of the German Army 
[OKW] issued during World War II (1939-1945) as the need arose and which, 
at one time or another and not necessarily in the sequence in which they were 
issued, came into the possession of the United States Army and were 
translated by its Office of The Provost Marshal General in order to ascertain 
whether the German Army was being officially instructed in accordance with 
the law of war. The translations were made and disseminated in numbered 
groups, first as "Collected Communications" and then as "Compilations." 
Each of the "Collected Communications" had its own paragraphing so it is 
necessary to identify specific portions thereof by both the number of the 
"Collected Communication" and of the paragraph. Apparently, at No. 11 (11 
March 1942), the name was changed to "Compilations" and the paragraphing 
became continuous. Accordingly, from that point on, reference to a 
paragraph number alone is adequate for identification. The series of orders 
here reproduced is of particular interest because each one was issued to meet 
a specific and actual problem with respect to prisoners of war which had 
arisen in connection with the German handling of enemy prisoners of war. 

EXTRACTS 

Collected Communications No. 1 (16 June 1941): 

1. Prisoners of war of alien nationalities in enemy armies. 

Frequently recurring doubts in determining the nationality of alien 
prisoners of war are now definitely resolved in the sense that the 
uniform is the determining outward factor in establishing the fact of 
the prisoner's belonging to the respective armed forces. Accordingly, 
Polish prisoners of war captured in French uniforms will be 
considered Frenchmen, while Poles captured in Polish uniforms will 
be considered Poles. 

Collected Communications No. 2 (7 July 1941): 
7. Cost of counsel for defense in criminal cases. 

In accordance with art. 62 of the Geneva [Prisoner-of-War] 
Convention, the cost of legal defense in criminal cases against 
prisoners of war is to be borne by the Protecting Power if the latter 
has appointed counsel. However, in case the defendant has appointed 
his own counsel, he is to bear alone the cost of defense. 



204 

Collected Communications No. U (1 September 1941): 
13. The decree of the OKW . . . permitting the confiscation, under certain 
circumstances, of regular German currency is also to be applied 
where prisoners of war are found in the illegal possession of currency 
other than German. 

Collected Communications No. 5 (10 October 1941): 
9. Re: Continuous rest periods for prisoners of war. 

The principle that prisoners of war are entitled to the same 
continuous rest period (Sunday rest) as German workers is being 
circumvented by some contractors by the device of employing a very 
small percentage of German workers along with the prisoners of war 
on Sundays. Such German workers are called for Sunday work only 
at long intervals, while the prisoners of war are compelled to work 
every Sunday. 

Apart from the fact that the above [OKW] order specifically provides 
for a continuous rest period for prisoners of war, such practices of the 
contractor cannot be condoned because they lead to continuous 
difficulties with the Protecting Power and also tend to exhaust the 
working capacity of the prisoners [of war]. 

The above order is to be understood in the sense that prisoners of war 
are entitled to the same continuous period of rest as German workers 
in the regular course of work. Any arbitrary interpretation of the 
order by the contractor is to be prevented. 
10. Correspondence between prisoners of war. 

In accordance with the censor's regulations, prisoners of war related 
by blood, such as fathers, brothers, or sons, may be permitted to 
correspond with each other. 

There is no objection to increasing the regular mail allotment of 
prisoners of war having relatives of the above stated degree in other 
prisoner of war camps by one letter and one card — incoming and 
outgoing — per month, as long as the regular mail control is not 
affected thereby. 

Collected Communications No. 6 (11 November 1941): 

3. Re: Marriages by proxy, etc. , of French prisoners of war. 

According to French law, declarations of French prisoners of war 
concerning proxy marriages, acknowledgments of paternity of an 
illegitimate child, and powers-of-attorney of all kinds must be made 
in the presence of two French officers or noncommissioned officers, 
or in the presence of one French noncommissioned officer and two 
witnesses of French nationality. 
5. Re: Enemy medical corps personnel. 

In case enemy medical officers or medical corps personnel attempt to 
evade the obligations imposed by the [Geneva Wounded-and Sick] 
Convention of 1929, Art. 12, sec. 3, as through escape, the camp 
commandant or the chief medical officer of the reserve hospital may 
order a temporary or permanent suspension of their privileges, in 



205 

whole or in part. 

Collected Communications No. 7 (8 December 1941): 
9. Re: Subsequent proof of noncommissioned officer's rank. 

Cases have come up recently where French prisoners of war have 
reported as privates when entering camp and later produced 
evidence of their being noncommissioned officers. They claim to have 
been led into making the false statement at the time they were 
admitted to the camp by the belief that as privates they were to be 
released sooner than otherwise. It may be presumed that they desire 
to be recognized as noncommissioned officers merely in order to be 
relieved of work duty. 

There is no reason to restore the right due noncommissioned officers 
to prisoners of war who have renounced these rights at the time they 
entered the camp. 

Collected Communications No. 10 (9 February 1942): 
3. Re: Disciplinary authority with respect to prisoners of war. 

In accordance with [Army Service Regulations] . . . only camp 
commandants and work detail leaders of officer rank have disci- 
plinary authority over prisoners of war. 

However, no objection may be made to combining several work 
details under one officer, who may be the controlling officer, and who 
is clothed with the disciplinary authority of a company commander 
over the prisoners of war. 

Further transfers of disciplinary authority to subordinate officers are 
not permitted. 

Compilations of Orders: 

21. Re: Considering the t&ste of prisoners of war in preparing their food. 
Prisoners of war often complain to foreign commissions that their 
taste preferences are not sufficiently taken into account in the 
preparation of food, as they have no say in the matter. According to 
[Army Service Regulations] . . . "prisoner of war officers are to be 
widely consulted concerning the preparation of their food." This 
regulation is to be compiled with, in so far as it has not been done 
already. It is also to be applied to stalags [prisoner-of war camps] for 
enlisted personnel and to internment camps. 
54. Confiscation of identification papers of prisoners of war. 

In order to render escapes of prisoners of war more difficult, all 
identification papers, with the exception of certificates of purely 
military nature. (Art. 6 of the [Geneva Prisoner-of-war] Convention 
of 1929), are to be confiscated and held in safekeeping together with 
the other valuables of the prisoners [of war]. 
56. Polish soldiers belonging to the French Army. 

The nationality of a soldier is determined by the uniform he is 
wearing at the time of capture. 

In doubtful cases, the place of residence of the prisoner of war before 
the war and the present residence of his next of kin will determine his 



206 

nationality. 

59. Engagements for work by British noncommissioned prisoner of 
war officers. 

British noncommissioned officers who signed a pledge to work but 
are no longer willing to do so are to be returned to the camp. The 
employment of British noncommissioned officers has resulted in so 
many difficulties that the latter have by far outweighed the 
advantages. The danger of sabotage, too, has been considerably 
increased thereby. 

79. Position of prisoner of war officers with respect to German personnel. 
A particular incident has moved the Fuehrer to emphasize anew that, 
when considering the relationship between prisoner of war officers 
and German camp personnel, the most humble German national is 
deemed more important than the highest ranking subject of an 
enemy power. 
102. Disciplinary authority over prisoners of war. 

The regulations of Collected Communications No. 10, paragraph 3, 
are supplemented as follows: 

a. Company commanders of regional defense battalions assigned to 
guarding prisoners of war who are in charge of work details led by 
noncommissioned officers or enlisted men will be considered as work 
detail leaders. 

b. Battalion commanders in charge of several work details combined 
under company commanders will also be considered as work detail 
leaders. 

Such a company or battalion commander has the same disciplinary 
authority over prisoners of war as the commander of a combat 
company or of a non-independent combat battalion, respectively. 

114. Killing and severe wounding of British prisoners of war or civilian 
internees. 

Every case of the killing and severe wounding of a British prisoner of 
war or civilian internee must be reported immediately. 
An investigation is to be initiated by a judicial officer or an otherwise 
qualified officer. Where comrades of the prisoner of war or civilian 
internee were witnesses to the incident, they, too, must be heard. 
The result of the investigation and the minutes of the depositions are 
to be forwarded to the OKW ... for notification of the Protecting 
Power. 

1 16. Internment and transfer of enemy nationals to German camps. 

1. Numerous foreign nationals have lately been taken into custody, 
for reasons of security, by Wehrmacht commanders and military 
governors, and transferred to Germany. 

These persons are "interness," regardless of whether they have 
previously belonged to the enemy armed forces, and include, for 
instance, released prisoners of war. 

2. Although no generally binding agreements concerning "internees" 



207 



— except with England and the United States — exist for the 
present, the above persons enumerated in "1" in German custody will 
be treated as prisoners of war. 

6. The question as to whether representatives of the Protecting 
Power or relief organizations should be permitted to visit the 
internees will be decided in each individual case by the OKW. 

117. Classification and pay of British prisoners of war. 

Since it is impossible to establish a complete correspondence between 
British and German ranks due to the absence of comparable German 
ranks, the classification of British prisoners of war will be based on 
information supplied by the British government and transmitted to 
the OKW by the Protecting Power. Accordingly, midshipmen, 
warrant officers, and acting pilot officers are to be treated and paid as 
officers. They must also be transferred to an officers' camp, if this has 
not already been done. 

140. Saluting by prisoners of war. 

All forms of saluting among prisoners of war deviating from the 
established military salute of their native country are to be pro- 
hibited. 

224. Shooting and severe wounding of prisoners of war and civilian 
internees (except Poles, Serbs, and Soviet Russians). 
An inquiry by a court officer or any other qualified officer is to be 
initiated in each case of the fatal shooting or wounding of a British, 
French, Belgian, or American prisoner of war or civilian internee. If 
comrades of the prisoner of war or the civilian internee were 
witnesses of the incident, they, too, will be heard. The result of the 
inquiry and a copy of the examination proceedings are to be 
submitted immediately to the OKW. 

226. Requests of prisoners of war during visits of delegates. 

The listing of requests by prisoners of war during visits of delegates 
consumes much time. It is therefore ordered that, henceforth, only 
requests which were written down after the visit had been 
announced and delivered to the chief spokesman, be given con- 
sideration. The spokesman will transmit them to the commandant (in 
hospitals — the head physician) who will have them examined by the 
censor's office. 

The requests will then be handed over to the delegate by the camp 
headquarters at the beginning of the inspection (visit). 
Direct transmittal of written requests by prisoners of war to the 
delegate is permitted neither in prisoner of war camps, nor in labor 
commandos or hospitals. Requests to forward letters are also 
forbidden. 

240. Association of prisoners of war with German women. 

There are several cases on record where judicial prosecution and 
punishment of prisoners of war for association with German women 



208 

was frustrated by the fact of their having been already punished 
disciplinarily, the matter being apparently considered as but a slight 
offense. 

266. Camp seniors in officers' camps with different nationalities. 

In officers' camps occupied by different nationalities, every 

nationality is to have its own camp senior. 

This camp senior is to represent the interests of his nationality before 

the Protecting Power and the International Red Cross and is 

authorized to communicate with the camp commandant. 

His competence does not extend to matters affecting prisoners of war 

of other nationalities. 

293. Legal expenses and notary's fees. 

Where the prisoners of war concerned are without means, legal 
expenses and notary's fees are to be paid out of canteen funds and, 
should these be exhausted, out of prisoner of war funds, if available. 

308. Use of German uniforms and civilian clothing by prisoners of war. 

All prisoners of war are to be informed that, when escaping in civilian 
clothes or in German uniforms, they run the risk not only of incurring 
disciplinary punishment, but also of being committed for trial on the 
charge of espionage or partisan activities, a charge which carries the 
death penalty. 

334. Warrant officers in the U.S. armed forces. 

Warrant officers and chief warrant officers in the U.S. Army, Navy, 
Marine Corps, and Coast Guard occupy an intermediate position 
between officers and noncommissioned officers. They are to be 
treated as officers. 

341. Examination of prisoners of war mail — in languages for which no 
interpreters are available. 

When prisoners of war are unable to communicate with their next of 
kin except in a language for which no interpreter is available at the 
censor's officer, their mail, both incoming and outgoing, may be sent 
to the Interpreter Training Section, Berlin. . . . This applies to the 
following languages: Hindustani, Urdu, Persian, Arabic, Kurdish, 
Georgian, Armenian, Boer, and Kusuaheli [sic]. 
The prisoners of war concerned are to be notified that a considerable 
delay in the handling and forwarding of their mail must be reckoned 
with. 

349. Communication between prisoners of war and their counsel. 

1. In criminal cases, prisoners of war are to be permitted at all times, 
upon request, to communicate in writing with their counsel. This 
correspondence is not to be counted in the monthly quota of letters 
and cards allowed the prisoners of war concerned. 

2. Furthermore, prisoners of war under indictment are to be 
allowed, upon request of the defense, to speak in person with their 
counsel before the start of the main proceedings. This conference is to 
be made possible at least one day before the main proceedings, upon 



209 



previous agreement with counsel. 

386. Ill-treatment of prisoners of war. 

Contractors and their employees are not permitted — except in self 
defense — to physically maltreat prisoners of war, Soviet prisoners 
included, or otherwise to lay hands on them. Where certain measures 
must be taken, as in case of refusal or slackening of work, they are to 
apply to the detail leader or to the control officer. 

395 . Handling of funds taken from prisoner of war airmen . 

Money and foreign currency taken from British and American 
prisoner of war airmen are to be handled like funds taken from other 
prisoners of war (issuance of receipts, crediting on Personal Card II). 
However, where the amounts are unusual, or where documents 
taken from the prisoners of war, or other circumstances, give reason 
to suspect that the monies involved are not personal, but fiscal 
property — such monies are to be credited, but at the same time 
blocked until the question of proprietorship has been cleared up. 

410. Confiscation of uniforms. 

The uniforms of prisoners of war officers, particularly French light 
infantry officers, French and British naval officers, and British 
aviation officers, have been frequently confiscated for reasons of 
security and replaced by other less objectionable as to cut and color. 
Such procedure is not permissible. The prisoner of war officer has a 
right to his uniform. It must be left in his possession even if it should 
make a stricter surveillance of the prisoner of war officer necessary. 

415. Visits to camps by the Mixed Medical Commission. 

The foreign members of the Mixed Medical Commissions endure 
many inconveniences and financial sacrifices in the performance of 
their duties in fulfillment of the Geneva [Prisoner-of-War] 
Convention. They are the guests of the German government for the 
length of their stay in Germany and are to be accorded every possible 
consideration. 

The foreign members of the Mixed Medical Commissions, who are 
generally officers, are to be greeted by all German officers and army 
officials as comrades. Enlisted men and noncommissioned officers are 
to salute them in the prescribed manner. 

439. Pay of Indian prisoner of war officers. 
In the Indian Army there are: 

a. British officers with royal commission, Indian officers with royal 
commission, and Indian commissioned officers. 

b. Officers commissioned by the Viceroy. . . . 

The officers enumerated under "a", occupy the same position and 
hold the same rank as officers of the British Army. They receive, 
therefore, the same pay as British officers. 

The officers enumerated under "b", continue to receive 50.00 
reichmarks per month. 



210 

462. Timely use of arms to prevent escapes of prisoners of war. 

In view of the increasing number of individual and mass escapes of 
prisoners of war, it is hereby again emphasized that guards will be 
subject to the severest disciplinary punishment, or, when a detailed 
report is at hand, to court-martial, not only for contributing to the 
escape of prisoners of war through negligence, but also for the failure 
to use their arms in time. The frequently observed hesitancy to make 
use of firearms must be suppressed by all means. Guard personnel 
must be instructed in this sense again and again. They must be 
imbued with the idea that it is better to fire too soon than too late. 

504. Use of firearms against prisoners of war. 

The service regulations for prisoner of war affairs do not provide for 
any warning shots. Should the occasion for the use of firearms arise, 
they must be fired with the intent to hit. 

511. Exercise of judicial functions by prisoners of war. 

. . . the [Prisoner-of-War] Convention of 1929 grants prisoners of 
war no right to exercise judicial functions, such as hearings, 
administering of oaths, etc. Rather, they are subject exclusively to 
the law of the Detaining Power which, when necessary, provides for 
the hearing of prisoners of war as witnesses, etc. This must be 
observed in inquiries concerning fatal shootings, etc. 
All senior prisoners of war and spokesmen are forbidden to perform 
so-called "judicial" acts; violations will be subject to punishment for 
usurpation of office and disobedience. 

513. U.S. prisoners of war in British uniforms. 

Prisoners of war of U.S. nationality captured as members of the 
Canadian armed forces are considered British prisoners of war 
regardless of whether they joined the Canadian services before or 
after the entry of the United States into the war. 
The uniform is the deciding factor. 

514. Classification and pay of British prisoners of war. 

"Leading seamen" and "Leading Stoker" in the British navy are to be 
considered noncommissioned officers and are to be treated as such. 
They are to be released from work only at the request of the British 
chief spokesman. 

561. Polish prisoners of war. 

A sharp distinction . . . is to be drawn between prisoners of war who 
were members of the former Polish army and those captured in 
French uniforms as members of the French armed forces. The latter 
are to be considered French prisoners of war, are to be reported as 
such to Geneva in the strength reports, and are to be represented by 
French spokesmen only. 

624. Examinations by Mixed Medical Commission. 

2. A prisoner of war . . . once declared by the Mixed Medical 
Commission to be eligible for repatriation is no more to be presented 
to the Commission. Their right to repatriation remains even when 



211 



their condition has improved in the meantime. 
672. Money orders in Reichsmarks to Great Britain. 

British bank-notes cannot be sent to Great Britain. In accordance 
with Art. 24 of the Geneva [Prisoner-of-War] Convention of 27 July 
1929, money taken from a prisoner of war may not be exchanged for 
another currency without his consent. British prisoners of war are at 
liberty to sell foreign exchange taken from them. . . . 
The Convention permits the transfer of sums of Reichsmarks only. 
The OKW does not know the rate of exchange at which the British 
government pays the receivers of the Reichsmarks. 

691. Pledges by British prisoners of war. 

1. Originally British prisoners of war were not permitted to pledge 

themselves not to flee. 

Circular letter of the Swiss Legation to the British camp spokesmen 

. . . was to notify the latter of the lifting of this prohibition by the 

British government. 

3. Formal pledges not to flee (not paroles), as applying to walks 

permitted under special conditions, are accepted from British 

prisoners of war officers only. 

Such pledges will not be accepted from British noncommissioned 

officers and men, nor from medical corps personnel. 

697. Transfer of foreign currency to America. 

Foreign currency taken from American prisoners of war at the time 
of their capture may be sent by the respective prisoner of war camp, 
with the consent of the prisoners concerned, to the Deutsche Bank in 
Berlin, . . . accompanied by a statement giving full details con- 
cerning the sender of the money, the recipient, their bank con- 
nections, and also containing a statement that the foreign exchange 
involved was taken from the prisoner at the time of capture. 
The Deutsche Bank will forward the amounts to the recipients and 
will deduct the transfer costs from the amount transferred. 

737. Handling of money taken from prisoner of war fliers. 

The enemy powers frequently supply their fliers with considerable 
amounts of money in the currencies of the countries lying in the path 
of their flying missions. These sums are sometimes packed in special 
purses, together with compasses, saws, etc. 

The camp commandants are to separate these amounts belonging to 
the fisc from the private funds right after capture. Receipts for the 
fisc money must be issued to the prisoners. 

738. Air raid shelter trenches. 

In a number of cases prisoners of war have declared through their 
spokesmen their unwillingness to work on air raid shelter trenches. 
Such a refusal on the part of a group of prisoners of war, in view of the 
internationally binding provisions of the [Geneva Prisoner-of-War] 
Convention of 27 July 1929, is to be ignored. 



212 

769. Tax on turnover of prisoner of war canteens. 

The Reich Minister of Finance will publish the following: 
On 20 October 1943 the Supreme Command of the Wehrmacht issued 
new regulations concerning the operation of canteens for prisoners of 
war. These regulations have been in force since 1 December 1943. 
They stipulate that prisoner of war canteens are establishments of 
the Reich and that their operations (resources) represent economic 
income and expense of the Reich. The turnover of the prisoner of war 
canteens is thus, beginning 1 December 1943, a part of the turnover 
of the Reich and is balanced by the amount paid in settlement of 
claims by the Supreme Command of the Wehrmacht for the sales 
(turnovers) of the three Wehrmacht branches. 

798. French legal advisers. 

There are several cases on record where French prisoners of war 
have been sent from their job to the M. Stalag in order to consult with 
the French legal adviser of the spokesmen in personal legal matters. 
Valuable working days have been lost. 

The legal consultation must be done by correspondence. Pulling a 
prisoner of war out of his job for consultation with the legal adviser of 
the spokesman is inadmissible. On the other hand, there is no 
objection to the French legal adviser's occasional visits to French 
labor commandos. But in this case, too, the legal consultation with 
the prisoners of war must take place in their free periods. No working 
time is to be lost through the use of the institution of legal counsel. 
Visits to labor commandos by French legal advisers are to be 
restricted to specially urgent cases. 

802. Foreign currency. 

Invasion money (bills based on French currency) taken from 
prisoners of war in France is not legal tender. These bills are not to be 
sold at the request of the prisoners of war but must be placed in 
safekeeping, credited to PK under "b. impounded valuables" and 
returned to the prisoners of war at the time of their release. 
Captured invasion money is to be sent to the Central Reich Treasury 
in Berlin. 

811. Search of prisoner of war quarters for security reasons . 

Searches of prisoner of war quarters for security reasons must 
generally be performed in the presence of a prisoner of war (e.g. 
spokesman, chief of barracks or house). Only in the exceptional cases 
where the purpose of the search makes the presence of a prisoner of 
war undesirable may the camp commandant disregard this rule. 

822. Working time of prisoners of war; work on Sunday. 

As a matter of principle, prisoners of war are to work the same 
number of hours as the German workers on the same job. This 
principle applies also to Sunday work; it is to be noted, however, that 
prisoners of war, after 3 weeks' continuous work, must be given a 
continuous rest period of 24 hours which is not to fall on Sunday. 



213 

When a plant which normally works on Sunday is closed for that day, 
the right of the prisoners of war to a continuous period of rest is still 
to be respected. However, no objection can be raised to prisoners of 
war working beyond the usual working day and on free Sundays on 
emergency jobs when German workers or the German population are 
required to take part in such emergency projects. However, the rest 
period thus lost on the emergency jobs must be made up for — even 
on a weekday — if the last continuous rest period was taken at least 3 
weeks back. 

In special emergency cases prisoners of war may be called upon to 
work for the relief of same [sic] even when the services of German 
workers or the German population are not required. The decision in 
the matter lies in each individual case with the respective camp 
commandant, in agreement with the local authorities, the competent 
Labor Office and the agency in need of assistance. 

840. Killing and serious injuries of prisoners of war and civilian 

internees (except Poles, Serbs, and Russians). 
The reference order [No. 224] has often not been observed, with the 
result that the OKW has had again and again to learn of cases of 
violent deaths of prisoners of war through the Ministry of Foreign 
Affairs or the Protecting Powers. This situation is unbearable in view 
of the reciprocity agreements with the enemy governments. The 
following additional orders are therefore announced herewith: 
Every case of violent death of serious injury is to be promptly 
reported through channels to the OKW. ... In cases involving the 
use of arms, written depositions of the participants and witnesses, 
including prisoners of war are to be attached; action is to be taken by 
the camp commandant and the prisoner of war commander. 

84 1 . Classification and pay of British prisoners of war. 

In the Royal Air Force, "Leading Aircraftsmen" are considered 

enlisted personnel. 

In the British Fleet Air Arm the 

Leading Airmen 

Leading Air Fitters 

Leading Air Mechanics 

Leading Air Artificers, 1-4 class 
and the Leading Ranks in the British Navy are considered non- 
commissioned officers. 
876. Treatment of Jewish prisoners of war. 

The bringing together of Jewish prisoners of war in separate camps is 
not intended; on the other hand, all Jewish prisoners of war are to be 
kept separated from the other prisoners of war in Stalags and 
officers' camps, and — in case of enlisted personnel — to be grouped 
in closed units for work outside the camp. Contact with the German 
population is to be avoided. 
In all other respects Jewish prisoners of war are to be treated like the 



214 



other prisoners of war belonging to the respective armed forces (with 
respect to work, duty, protected personnel, etc.). 



215 
DOCUMENT NO. 52 

AGREEMENT BETWEEN THE UNITED STATES AND ITALY 
SUPPLEMENTING THE 1929 GENEVA PRISONER-OF-WAR 

CONVENTION 
(Berne, December 1941-June 1942) 

SOURCE 
For. ReL, 1942, III, Europe, at 24 

NOTE 
During World War I (1914-1918) many bilateral and multilateral 
agreements were entered into between the belligerents for the purpose of 
solving specific problems which had arisen with respect to the treatment of 
prisoners of war (see NOTE to DOCUMENT NO. 37). Their objective was to 
supplement the patently inadequate provisions concerning prisoners of war 
contained in the 1907 Hague IV Regulations (DOCUMENT NO. 33). This 
procedure of special supplementary agreements between belligerents was 
rarely followed during World War II (1939-1945) and this was certainly not 
because the 1929 Geneva Prisoner-of-War Convention (DOCUMENT NO. 
49) was so much more all-encompassing than the earlier Regulations. The 
present agreement with Italy and a very much narrower one with Germany 
(DOCUMENT NO. 54) were among the very few entered into by the United 
States during World War II despite the fact that it lasted considerably 
longer, involved numerically greater armed forces, and covered a much 
larger part of the globe. Moreover, unlike the World War I agreements, this 
one was proposed and entered into before any actual problems had arisen and 
solely for the purpose of supplementing the obvious inadequacies of the 1929 
Convention. (Only the inter-office references and cross-references which 
were included in the original messages because of the form of the agreement, 
a secondhand exchange of messages, have been omitted. The annexes were 
not printed in the original.) 

EXTRACTS 

The Charge in Switzerland (Huddle) to the Secretary of State 

Bern, February 12, 1942. 

529. Following is translation of Italian note verbale January 2: 

"Italian Foreign Office has received Swiss note verbale of December 24, 
1941, transmitting proposal of American Government to apply during actual 
state of war between Italy and United States the Geneva prisoners of war and 
Red Cross conventions extending benefits first convention as far as applicable 
reciprocally to interned civilians of two countries. 

Italian Foreign Office requests Swiss Legation communicate to American 
Government that Italian Government agrees to above proposal. 

Italian Government reserves right to present further proposals for 
carrying out provisions of above mentioned conventions." 



216 



Swiss Foreign Office note February 4 now forwards copy further Italian 
note verbale of January 22 translated as follows: 

"Italian Foreign Office in accordance with reserve contained in its note of 
January 2 requests Swiss Legation to transmit following communication to 
American Government: 

1. Italian Government confirms former communication and considers in 
force vis-a-vis United States on reciprocal basis the two international 
conventions subscribed Geneva 1929 relative prisoners of war and Red Cross. 

2. Italian Government in order improve application prisoners of war 
convention proposes following points: Article 14. In conformity fourth 
paragraph this article Italian Government disposed on basis reciprocity 
consent [to] retain in prisoners of war camps doctors and medical orderlies for 
purpose caring for wounded and sick prisoner compatriots. 

Agreement on above whenever reached shall be extended to religious 
personnel which according article 12 of Red Cross Convention should be 
repatriated. 

For medical and dental care furnishing provisional artificial limbs, eye 
glasses, et cetera, conditions article 14 would be applied exactly as originally 
written. Article 21. Conformity this provision there is transmitted (appendix 
I) table of ranks and grades in force in Italian armed forces. 

Regarding assimilated personnel mentioned paragraph 2 article 21 there 
are attached (annex 2) two copies Official Gazette number 125 May 29, 1941, 
containing regulations for execution of forms of militarization of civil 
personnel attached to active forces and table of equivalent grades. Article 23. 
Standards of pay of each grade are given in annex 1. (a) Italian Government 
suggests value of exchange applicable to points which follow be 19 lire to one 
dollar; (b) Italian Government will pay American officers and assimilated 
persons who are prisoners of war same rate of pay as indicated in 
aforementioned table for officers of same rank as in Italian armed forces as far 
as not higher than level which shall be indicated by American Government. 
Final clause article 23 shall naturally be applicable to these payments; (c) 
Italian Government would like to know if scale of payments indicated above is 
sufficient to assure normal living conditions (food, clothing, miscellaneous 
expenses) for Italian prisoners of war in United States as in Italy; (d) Italian 
Government proposes to make following payments on reciprocal basis in 
addition to treatment contemplated by the convention: Italian lire or 
equivalent in dollars weekly, 10.80 for noncommissioned officers — home 
forces, 7.20 for enlisted men, 4.80 for Libyan personnel of all grades, 3.00 for 
personnel of Italian East African forces of all grades. 

If proposals under point (d) are accepted Italian Government will accord 
similar treatment to corresponding American personnel with such differ- 
ences as American Government may eventually communicate for its colored 
personnel. 

Final clause article 23 would also be applicable to such payments; (e) 
payments must be made in full to Italian prisoners of war as Italian 



217 

administration authorities intend to pay directly to families of Italian 
prisoners a part of other allowances due to respective members of family who 
are in captivity. Article 24. Regarding maximum amount of cash which 
prisoners of various grades will be allowed to keep on their persons it is 
proposed that prisoners be not allowed to receive negotiable money 
(disponibilita di valuta coreate [corrente]), but should be allowed to spend 
only special monetary substitute issued by commander of camp. Article 27. 
Adhering to right of employment for work of prisoners of war under 
conditions specified in this article Italian Government wishes stipulate that 
imprisoning power should for duration of imprisonment allow prisoners who 
are victims of accidents occurring during employment, benefits set up by 
applicable regulations concerning workers of same category according to 
legislation of imprisoning power. Each Government will then regulate 
according own laws the question of indemnity to be granted its own nationals 
when they shall have returned- from imprisonment for injuries occurring 
during imprisonment. Italian Government proposes that proper authorities 
of imprisoning power will ensure that prisoners of war, victims of industrial 
accidents during work, shall receive a proper certificate attesting to nature of 
accident. Article 34. It is proposed that work of tailors, shoemakers, barbers 
and laundrymen be considered as exceeding ordinary work of camp and be 
remunerated on following scale: tailors and shoemakers lire 0.45 per hour 
with limit of 3.60 lire per day, barbers and laundrymen lire 0.22 per hour with 
limit of 1.80 per day. For labor performed outside of camps scale of payment 
shall be lire 10.00 for skilled and lire 7.00 daily for unskilled worker. 

Payments of above should be in addition to food, lodging and clothing. 
Article 36. On condition of reciprocity, Italian Government disposed to 
permit prisoners to send in addition to a card announcing their capture a 
letter and a postcard per week, each letter not to exceed 24 lines and postcard 
should only contain several sentences regarding health of prisoners and few 
words of greeting. Special stationery and postcards shall be adopted to be 
distributed by imprisoning power. 

There shall be no restrictions regarding persons to whom prisoners may 
address letters except prisoners in different concentration camps cannot 
write each other unless related. Article 68. Italian Government proposes 
adoption of model agreement of type annexed to the convention with change 
that prisoners of war who are to be repatriated, contemplated in numbers 1,2 
of letter B of model agreement should be repatriated rather than hospitalized 
in neutral countries. 

Italian Government proposes to extend benefit of repatriation to those 
military persons, Italian and North American, interned in third countries 
who meet conditions provided in letters A and B of aforementioned model. 
Article 69. International Committee of Red Cross will be requested to 
nominate neutral members of Mixed Medical Commission. Article 76. 
Confirming execution of this article Italian Government proposes that 
ordinary funeral expenses and burial of prisoners should be met by 
imprisoning power. If fellow soldiers desire pay special honors, greater part 



218 

of cost shall be at their expense, if authorization of camp commandant is 
obtained. Article 77. Prisoner Information Bureau (VUfficio Prigionieri 
Richerche [Ricerche?]) of Italian Red Cross established in Rome (Via Puglie 
6) is charged with furnishing information about prsioners of war. 

It is proposed that articles for use of prisoners be transmitted through 
respective offices of information of two countries to International Committee 
of Red Cross for forwarding to interested government unless accord is 
reached for direct transmission between above-mentioned offices of 
information. 

3. Italian Government in order improve application of Red Cross Con- 
vention proposes following points. Article 12. In accordance with provisions 
this article and connection with above proposals it is proposed to make 
following reciprocal payments in lire monthly to this personnel in addition to 
their lodging: medical officers, chaplains and officers attached to the 
administration of sanitary establishments: Lieutenant General 4200, Major 
General 3200, Colonel 2650, Lieutenant Colonel 2300, Major 2000, Captain 
1700, Lieutenant 1400, Second Lieutenant 1100. Medical orderlies of 
recognized organizations will receive 1100 lire monthly. Personnel below 
rank of officer: Marshall of all ranks 288, Sergeant Major 216, Sergeant 144 
monthly, Corporal and enlisted men 3.60 daily. 

For last group monthly or daily allowance is in addition to maintenance 
which should always be provided by imprisoning power. 

In line with this procedure it is proposed (a) that medical or religious 
personnel be repatriated during war in case they are wounded or sick on basis 
of model agreement annexed Red Cross Convention; (b) that this same 
personnel will enjoy treatment provided for by articles 9 to 13 of Red Cross 
Convention with sole restriction of personal liberty imposed by military 
exigencies; (c) that at end of war the rights be reserved to personnel 
mentioned above as provided by last paragraph of article 12 of Red Cross 
Convention; (d) that same personnel should be sent to give assistance 
wherever camps are maintained for Italian prisoners or civil internees with 
equal distribution among camps. 

4. In addition to above proposals which relate to execution of various 
articles of Geneva Conventions Italian Government also proposes to regulate 
following questions on basis of reciprocity: (a) tobacco — that there be 
distributed free to prisoners (officers included) an amount of tobacco (pipe 
tobacco or cigarettes of choice) up to 35 grams per week; (b) that mess of 
noncommissioned officers, prisoners of war, be administered by them or that 
facilities be given them for running it and to extend also to noncommissioned 
officers privileges of last sentence of article 22 of Prisoners of War 
Convention. 

5. Italian Government also confirms communication made in note verbale 
January 2 to Swiss Legation regarding extending benefits of the Prisoners of 
War Convention as far as applicable to civil internees of both countries on 
reciprocal basis. 



219 

Italian Government proposes that two Governments send each other 
reciprocally, through protective power, lists of civilians of two countries 
interned in territory of the other and successive changes as these take place. 

6. Italian Government awaits the reply of American Government before 
considering points 2, 3, 4 of the present note as being agreed upon and in 
force." 

Huddle 
The Acting Secretary of State to the Charge in Switzerland (Huddle) 

Washington, March 20, 1942. 

717. Please request the Swiss Government to inform the Italian 
Government (1) that proposals 2, 3 and 4 of its note of January 2 [22] are 
receiving consideration and that the attitude of the American Government 
with regard to them will be communicated in the near future; (2) with 
reference to point 5, that this Government is drawing up proposals regarding 
the extent and manner of application of the provisions of the Prisoners of War 
Convention to civilian internees and detainees which will be communicated to 
the Italian Government, (3) that pending further agreement between the two 
Governments as to which provisions of the Convention are applicable to 
civilians, the Government of the United States will not apply Article 27 of the 
Convention to civilian internees and (4) that this Government expects the 
Italian Government to accord like treatment to American civilians who may 
be detained by it. 

Welles 
The Minister in Switzerland (Harrison) to the Secretary of State 

Bern, May 26, 1942. 

2285. Swiss Legation Rome telegraphs May 19 following text of note dated 
May 15 from Italian Foreign Office (translation from Italian): 

"Ministry of Foreign Affairs refers to note verbale 00114 of March 28 by 
which Swiss Legation transmitted a communication of the United States 
Government regarding application of the Geneva Convention for treatment 
of prisoners of war and amelioration of the conditions of the wounded and sick 
of the army in the field. 

Ministry requests Legation forward following reply to American 
Government: 

1. Italian Government takes note of assurance that American Government 
is examining proposals 2, 3 and 4 of note verbale of January 22 (see Legation's 
529, February 12) and that it will make clear its stand in regard to these 
points and Italian Government is awaiting reply in this regard and also in 
regard to proposal of United States Government concerning point 5 of above 
mentioned note verbale. 

2. Italian Government also notes fact that American Government does not 
intend to apply (pending an agreement between two Governments relative 
extension to civilian internees of provisions of Geneva Convention) article 27 
of that Convention to civilian internees and gives assurances that similar 
treatment will be applied to American civilians interned in Italy. 

3. Italian Government declares that treatment of American civilians 



220 

interned in Italy is guided in addition to principles International Law and the 
Geneva Convention by high humanitarian principles and trusts that similar 
spirit inspires American Government in treatment of Italian civilians 
interned in United States." 

Harrison 
The Secretary of State to the Minister in Switzerland (Harrison) 

Washington, June 1, 1942. 

1400. Request the Swiss Government to communicate the following 
matters to the Italian Government with reference to the Italian Foreign 
Officer's note verbale 31/01511 of January 22, 1942. Numbers refer to 
numbered sections of the Italian Foreign Office's note under reference. 

2. Geneva Prisoners of War Convention. 

Article 11*. The American Government reserves the right for the 
repatriation, in accordance with the provisions of Article 12 of the Geneva 
Red Cross Convention, of medical personnel and chaplains but agrees that 
pending such repatriation, doctors, medical orderlies and chaplains shall, in 
accordance with the provisions of paragraph 4, Article 14, be used 
reciprocally for the care of their compatriots in prisoners of war camps. 

The American Government assents to the proposal of the Italian 
Government that the provisions of Article 14 for the furnishing of temporary 
prosthetic equipment and for medical care shall be applied exactly as written. 

Article 21. The proposals of the Italian Government with regard to Article 
21 are still under study. A further communication with regard to them will be 
addressed to the Italian Government. 

Article 23. 

(a) The American Government suggests that the value of exchange 
applicable to the points which follow should be 20 lire to one dollar U.S.A. 

(b) The American Government proposes that there be substituted for the 
rates of pay provided for under Article 23 the following rates of pay: 

First or second lieutenants, chief warrant officers, warrant officers in the 
Army; lieutenants, junior grade, ensigns, chief warrant officers, warrant 
officers in the Navy; first and second lieutenants, chief warrant officers, 
warrant officers in the Marine Corps; and similar grades in the United States 
Coast Guard and United States Public Health Service, to include cor- 
responding ranks for the Italian armed forces, to receive $20 a month or 400 
lire. 

Captains in the Army, Lieutenants in the Navy, Captains in the Marine 
Corps, and similar ranks in the United States Coast Guard and United States 
Public Health Service, to include corresponding ranks for the Italian armed 
forces, to receive $30 a month or 600 lire. 

Majors and upwards in the Army, Lieutenant Commanders and upwards in 
the Navy, Majors and upwards in the Marine Corps, and similar ranks in the 
United States Coast Guard and United States Public Health Service, to 
include corresponding ranks for the Italian armed forces, to receive $40 a 
month or 800 lire. 



221 

It is suggested that the remaining sums due on the pay accounts of all 
officer prisoners of war be paid by the Government of origin as an allotment to 
the family of the prisoner of war. 

(c) The money allowances provided for under (b) shall be in addition to 
rations to be distributed at the prisoners of war camps, the cost of which shall 
be borne by the detaining power. 

(d) The American Government proposes that payment in Italian lire or its 
equivalent in dollars be on a basis of 8 cents American money per diem for 
non-commissioned officers and 5 cents American money per diem for all other 
enlisted personnel, no distinction being made in this connection between 
American white and colored soldiers. 

(e) All payments suggested above shall be paid in full, it being understood 
that the authorities of the country of origin shall pay sums due to their 
nationals, over and above the amount specified, to the dependents or legal 
representatives of the nationals in their country of origin. 

Article 24. The American Government accepts the proposal of the Italian 
Government that prisoners of war be not allowed to receive negotiable money 
and that they should be allowed to spend for their needs only a special 
monetary substitute issued by the commander of the camp. 

Article 27. The American Government proposes that the money allowances 
provided for enlisted personnel set forth above under Article 23 point (b) 
continue to be paid to such personnel, even though injured, during the 
complete period of injury with no deductions of any kind, and in addition 
thereto during the period of injury 50 per cent of the rate of wage paid for the 
work being performed at the time of injury, these payments being in lieu of 
compensation. 

The American Government accepts the proposal of the Italian Government 
that each Government should regulate, according to its own laws, the 
question of allowances to be granted to their own nationals, when they shall 
have returned from imprisonment, for injuries occurring during impris- 
onment, and agrees that a proper certificate attesting to the nature and the 
circumstances of the injuries shall be issued for each victim of an industrial 
accident. 

Article 34- The Italian Government's proposal that work of tailors, 
shoemakers, barbers, and laundrymen, shall be considered as exceeding the 
ordinary work of the camp and shall be remunerated under a special scale is 
still under consideration by the appropriate American authorities. 

The American Government accepts the Italian Government's proposal that 
the scale of payment for labor performed outside of camps shall be 10 lire per 
day for skilled workers and 7 lire a day for unskilled workers or its equivalent 
in dollars, this payment to be in addition to food, lodging and clothing. 

Article 36. The American Government proposes that instead of one letter 
and one card per week, each prisoner of war be permitted to write two letters 
and one card per week, this being the amount of outgoing correspondence 
now allowed by the American authorities to Italian civilian internees in the 



222 



United States. The proposal that there shall be no restrictions regarding the 
persons to whom prisoners of war may address letters is accepted, except as 
to that part of the proposal which permits correspondence between related 
prisoners of war and internees held in different camps, to which the American 
Government agrees only to the extent that relationship can be satisfactorily 
established. 

Article 68. The American Government accepts the proposal of the Italian 
government regarding the adoption of the model agreement annexed to the 
Convention with the change suggested regarding repatriation rather than 
hospitalization in neutral countries. 

The American Government also accepts the proposal of the Italian 
Government to extend the benefit of repatriation to those military persons 
interned in third countries who meet the conditions provided in letters (a) 
and (b) of the model agreement. 

Article 69. The Italian Government's proposal with regard to Article 69 is 
accepted. 

Article 76. The Italian Government's proposal is accepted by the American 
Government subject to a change in the second sentence to provide that if the 
fellow soldiers of the dead shall desire to pay special honors, the "difference 
in" not the "greater part of the costs shall be at their expense. 

Article 77. The prisoners of war and civilian internees Information Bureau 
in the Office of the Provost Marshal General of the United States is already 
transmitting information regarding Italian citizens held in custody in the 
United States to the Central Information Bureau of the International Red 
Cross Committee at Geneva and the appropriate protecting Power. This 
office is also charged with furnishing information about the prisoners of war. 
The American Government proposes that articles for use of prisoners be 
forwarded through ordinary mail channels, when available, and through the 
facilities made available by the International Red Cross Committee. 

3. Geneva Convention for the Amelioration of the Condition of the 
Wounded and Sick of Armies in the Field. 

Article 12. The American Government proposes that medical officers, 
chaplains and officers attached to the administration of sanitary estab- 
lishments be paid in accordance with the proposal made under the heading 2. 
Prisoners of War Convention, Article 23, above, and that the pay allowance 
be in addition to maintenance in the case of all such officers, as well as in the 
case of all enlisted men. With reference to the further Italian proposals, it is 
proposed and suggested as follows: 

(a) The American Government agrees that medical or religious personnel 
shall be used for the care of their own compatriots but reserves the right of 
such personnel to repatriation under the provisions of Article 12. It desires 
that only those members of the medical or religious personnel who voluntarily 
relinquish their right of repatriation should be retained after a way is opened 
for their return and military exigencies permit. 

(b) The American Government agrees to the Italian Government's 



223 

proposals under (b),(c), and (d) of this heading. 

4. Additional proposals for the regulation of the following questions on a 
basis of reciprocity: 

(a) Tobacco. The American Government agrees to this proposal. 

(b) The American Government does not agree to the proposal that a 
separate mess be established for non-commissioned officer prisoners of war. 

Hull 
The Secretary of State to the Minister in Switzerland (Harrison) 

Washington, December 3, 1942. 

2721. Inform International Red Cross Committee that this Government 
and Italian Government have agreed to enforce Model Agreement attached 
to Geneva Prisoners of War Convention (Department's 1400, June 1) and 
have agreed to ask International Red Cross Committee to appoint neutral 
members of the Mixed Medical Commissions provided for in Article 69 of the 
Geneva Prisoners of War Convention. 

This Government would, therefore, be grateful if International Red Cross 
Committee would consent to nominate the neutral members of these 
commissions. This Government suggests that these commissions be con- 
tinuing commissions and that in order that they may be able to serve without 
interruption that the International Red Cross Committee submit simul- 
taneously with the names of the neutral doctors nominated as members of the 
commissions additional names of neutral doctors to serve as alternate 
members in case regular members should be unable to perform their duties. 

When this Government shall have been informed that the International 
Red Cross Committee has agreed to nominate these members and that it has 
been approached by Italian Government in this regard, it will take the action 
necessary for the appointment of the third member (with an alternate) of the 
commission in the United States in order that upon a reciprocal basis the 
repatriation of seriously sick and wounded prisoners of war can be 
commenced at the earliest opportunity. 

Request Swiss Government to communicate substance of this telegram to 
Italian Government and to ask whether Italian Government has approached 
International Red Cross Committee regarding nomination of neutral 
members of Mixed Medical Commissions. 

Hull 



224 

DOCUMENT NO. 53 

REX v. GIUSEPPE AND OTHERS 
(South Africa, Supreme Court, Trans. Prov. Div., 21 January 1942) 

SOURCES 

[1943] S.A.L.R. (T.P.D.) 139 

12 Ann. Dig. 411 

NOTE 
This is a simple, clear-cut case in which the court properly applied the rule 
that the Protecting Power must be notified of the proposed prosecution of a 
prisoner of war for a criminal offense at least three weeks before the opening 
of the trial. At the time of this case that provision was contained in Article 60 
of the 1929 Geneva Prisoner-of-War Convention (DOCUMENT NO. 49). It is 
now contained in Article 104 of the 1949 Geneva Prisoner-of-War Convention 
(DOCUMENT NO. 108). 

TEXT 

Malan, J. : This matter came before me on review at the special request of 
the Crown. 

The accused are twelve Italian prisoners of war and they were charged and 
found guilty by the magistrate of Pilgrims Rest on two counts of theft and one 
of housebreaking with intent to steal and theft, and were sentenced to pay 
various fines, with alternatives of imprisonment. 

It would appear that the accused were not represented by defending 
counsel or attorney in the court below, and they are now raising objection to 
the convictions and sentences on the ground that they have not had an 
opportunity of objecting to the jurisdiction of the Court, that they had not had 
an opportunity of obtaining legal representation, and that they were not 
informed by the interpreter of the sentences that were passed, so that they 
only realised for the first time that they were convicts when a civilian 
interpreter explained the position to them at the Nelspruit gaol shortly after 
the conviction. These statements are accepted as correct by the magistrate. 

Article 60 of the Geneva Convention reads as follows: — 

"At the commencement of a judicial hearing against a prisoner of war, the 
detaining Power shall notify the representative of the protecting power as 
soon as possible, and in any case before the date fixed for the opening of the 
hearing. 

"The said notification shall contain the following particulars: — 

(a) Civil status and rank of the prisoner. 

(b) Place of residence or detention. 

(c) Statement of the charge or charges, and of the legal provisions 
applicable", 

and there are certain other provisions which do not affect the present case. It 
is admitted that no notification, as provided in the Article, has been sent and 



225 

that there has been no legal representation. 

In the circumstances, I think that the irregularity is sufficient to warrant 
my setting aside the convictions and sentences of the prisoners and an order 
to this effect is accordingly made. 



226 

DOCUMENT NO. 54 

ARRANGEMENT BETWEEN THE UNITED STATES OF AMERICA 

AND GERMANY RESPECTING RECIPROCAL APPLICATION OF 

THE MODEL AGREEMENT CONCERNING REPATRIATION AND 

HOSPITALIZATION OF PRISONERS OF WAR ANNEXED TO THE 

CONVENTION [RELATIVE TO THE TREATMENT OF PRISONERS 

OF WAR] SIGNED AT GENEVA JULY 27, 1929 

(Washington, 4 and 30 March 1942) 

SOURCES 
56 Stat. 1507 
8 Bevans 243 
144 BFSP 1166 

NOTE 
The agreement appearing below is one of the very few entered into by the 
United States with an enemy belligerent during World War II (1941-1945). 
(See DOCUMENT NO. 52.) It will be noted that its coverage was extremely 
limited as it merely made the "Model Agreement Concerning the Direct 
Repatriation and Hospitalization in a Neutral Country of Prisoners of War for 
Reasons of Health," which was annexed to the 1929 Geneva Prisoner-of-War 
Convention (DOCUMENT NO. 49), applicable as between Germany and the 
United States. 

TEXT 

The Minister of Switzerland, in Charge of German Interests, to the 

Secretary of State 

LEGATION OF SWITZERLAND 
WASHINGTON, D.C. 
DEPARTMENT OF 
GERMAN INTERESTS 

The Minister of Switzerland, in charge of German Interests, presents his 
compliments to the Honorable the Secretary of State and has the honor to 
submit to him the following proposition received from the German 
Government: 

"The United States as well as the German Government are signatories to 
the International Convention of July 27, 1929, regarding the treatment of 
prisoners of war and of the Geneva Agreement of the same date for 
improvement of the fate of the sick and wounded of the armies in the field. 

Article 68 of the Convention regarding the treatment of prisoners of war 
provides for additional agreements between warring nations relating to 
impairment and sickness justifying the transport home or sheltering of 
prisoners of war in a neutral country. The Government of the German Reich 
proposes to the Government of the United States to enforce the Model 
Agreement attached to the Geneva Convention concerning direct repat- 



227 

riation and hospitalization in a neutral country of prisoners of war for reasons 
of health. The German Government looks forward to the communication of 
the views of the American Government in this respect. 

The German Armed Forces Information Service located at Hohen- 
staufenstrasse 47, Berlin W.30, has received the necessary instructions to 
give information in regard to members of the American Armed Forces taken 
prisoners by Germany and to give particulars regarding such prisoners of war 
to the Legation of Switzerland designated by the American Government as 
protecting power as well as to the Central Information Office for Prisoners of 
War at Geneva." 

Washington, D.C. 
March 1»1%2 
To the Honorable 

The Secretary of State 

The Secretary of State to the Minister of Switzerland, in Charge of 

German Interests 

The Secretary of State presents his compliments to the Honorable the 
Minister of Switzerland in charge of German interests and has the honor, with 
reference to his note of March 4, 1942 submitting proposals from the German 
Government, to communicate the following: 

The Government of the United States accepts the proposal of the 
Government of the German Reich to enforce the Model Agreement attached 
to the Geneva Convention concerning direct repatriation and hospitalization 
in a neutral country of prisoners of war for reasons of health. 

The Government of the United States has taken note of the statement of 
the German Government to the effect that the German Armed Forces 
Information Service located at Hohenstaufenstrasse 47, Berlin W.30, has 
received the necessary instructions to give information in regard to members 
of the American Armed Forces taken prisoners of war by Germany and to 
give particulars regarding such prisoners of war to the Legation of 
Switzerland designated by the American Government as Protecting Power 
as well as to the Central Information Office for Prisoners of War at Geneva. 

The Prisoners of War Information Bureau established by the Government 
of the United States in the office of the Provost Marshal General of the United 
States Army will furnish to the Legation of Switzerland, designated by the 
German Government as Protecting Power, as well as to the Central 
Information Office for Prisoners of War at Geneva, particulars regarding 
members of the German Armed Forces taken prisoners by the United States. 

In accordance with the declared intention of the United States to apply to 
civilian enemy alien internees the provisions of the Geneva Prisoner of War 
Convention to the fullest extent possible, the Civilian Internee Information 
Bureau in the office of the Provost Marshal General of the United States 
Army is already transmitting to the Legation of Switzerland and to the 
Central Information Office at Geneva particulars regarding German civilians 



228 



interned or temporarily detained by the United States. 
Department of State, 
Washington 
March 30, 1U2 



229 

DOCUMENT NO. 55 

EX PARTE RICHARD QUIRIN ET AL 

(Supreme Court of the United States, 

29 October 1942) 

SOURCE 
317 U.S. 1 

NOTE 
This 1942 opinion of the Supreme Court of the United States, handed down 
in a case which arose very shortly after the United States became involved in 
World War II (1941-1945), was concerned with the trial by military 
commission of a group of would-be saboteurs, including one who claimed to be 
an American citizen, who had been landed in the United States by German 
submarines. It contains two issues relevant to prisoners of war: first, it draws 
a distinction between lawful combatants who, upon capture, are entitled to 
prisoner-of-war status, and unlawful combatants, who are not; and second, it 
holds that an individual who is a citizen of a belligerent country can still be an 
"enemy belligerent" if he "associates" himself with the enemy armed forces. 
(For another opinion holding that citizenship in the Detaining Power does not 
affect the status of an individual otherwise entitled to prisoner-of-war status, 
see DOCUMENT NO. 80; to the opposite effect, see DOCUMENT NO. 153.) 

EXTRACTS 

Mr. Chief Justice Stone delivered the opinion of the Court. 

By universal agreement and practice, the law of war draws a distinction 
between the armed forces and the peaceful populations of belligerent nations 
and also between those who are lawful and unlawful combatants. Lawful 
combatants are subject to capture and detention as prisoners of war by 
opposing military forces. Unlawful combatants are likewise subject to 
capture and detention, but in addition they are subject to trial and 
punishment by military tribunals for acts which render their belligerency 
unlawful. The spy who secretly and without uniform passes the military lines 
of a belligerent in time of war, seeking to gather military information and 
communicate it to the enemy, or an enemy combatant who without uniform 
comes secretly through the lines for the purpose of waging war by destruction 
of life or property, are familiar examples of belligerents who are generally 
deemed not to be entitled to the status of prisoners of war, but to be offenders 
against the law of war subject to trial and punishment by military tribunals. 
See Winthrop, Military Law, 2d ed., pp. 1196-97, 1219-21; Instructions for 
the Government of Armies of the United States in the Field, approved by the 
President, General Order No. 100, April 24, 1863, §§ IV and V. 

Citizenship in the United States of an enemy belligerent does not relieve 



230 

him from the consequences of a belligerency which is unlawful because in 
violation of the law of war. Citizens who associate themselves with the 
military arm of the enemy government, and with its aid, guidance and 
direction enter this country bent on hostile acts, are enemy belligerents 
within the meaning of the Hague Convention and the law of war. Cf. Gates v. 
Goodloe, 101 U.S. 612, 615, 617-18. It is as an enemy belligerent that 
petitioner Haupt is charged with entering the United States, and unlawful 
belligerency is the gravamen of the offense of which he is accused. 



231 
DOCUMENT NO. 56 

JAPANESE REGULATIONS FOR THE TREATMENT OF PRISONERS 

OF WAR 
(AMENDED TO 1943) 

SOURCE 

International Military Tribunal for the Far East, Exhibit No. 1965-A, at 3 
(National Archives of the United States) 

NOTE 
These Regulations, originally promulgated during the Russo-Japanese 
War (1904-1905), a conflict which was marked by an unusual degree of 
compliance with the laws and customs of war, closely follow the relevant 
provisions of the 1899 and 1907 Hague Regulations (DOCUMENT NO. 28 
and DOCUMENT NO. 33, respectively), to both of which Japan was a Party. 
(She was not a party to the 1929 Geneva Prisoner-of-War Convention 
(DOCUMENT NO. 49), but she did agree, early in her involvement in World 
War II (1941-1945), that she would apply it mutatis mutandis). When 
compared with the actual treatment of prisoners of war by the Imperial 
Japanese Army during World War II (see DOCUMENT NO. 101), these 
Regulations demonstrate how a nation can sometimes produce surface 
evidence of compliance with the laws and customs of war while actually 
paying no attention whatsoever to them. Japan's calculated maltreatment of 
prisoners of war during World War II reached a level unknown since the Dark 
Ages of history and was equalled only by the German treatment of Russian 
prisoners of war and the Russian treatment of all prisoners of war during that 
conflict. 

TEXT 
REGULATION FOR THE TREATMENT OF PRISONERS OF WAR 

Chapter I 
General Provisions 

Article 1 
A prisoner of war, as defined in these regulations, is any enemy combatant 
who has fallen into the power of the Empire or any other person who is to be 
accorded the treatment of a prisoner of war by virtue of international treaties 
and customs. 

Article 2 
A prisoner of war shall be humanely treated and in no case shall any insult 
or maltreatment be inflicted upon him. 

Article 3 
A prisoner of war shall be given appropriate treatment, according to his 
status or rank. However, this shall not apply to any persons who do not 
answer truthfully to interrogations regarding his name and rank or to any 
person who is guilty of other offenses. 



232 

Article 4 
A prisoner of war shall be controlled according to the regulations of the 
Imperial Army and he shall not otherwise be arbitrarily restrained. 

Article 5 
A prisoner of war shall enjoy freedom of religion and may participate in the 
religious ceremonies of his own denomination, insofar as military discipline 
and public morals are not prejudiced thereby. 

Article 6 
In case a prisoner of war is guilty of an act of insubordination, he shall be 
subject to imprisonment or arrest; and any other measures deemed necessary 
for the purpose of discipline may be added. 

Troops may be used to halt an attempt at escape by prisoners of war and, in 
case of necessity, may inflict injury or death upon them. 

Article 7 
A prisoner of war, not on parole, who is captured before he succeeds in 
escaping shall be subject to disciplinary punishment. 

Said prisoner of war who initially succeeds in escaping and is again 
captured shall not be liable to any punishment for his previous escape. 

Article 8 
In addition to the disciplinary methods prescribed in the preceding Article 
the criminal offenses of prisoners of war shall be tried by army court martial 
according to the Army Disciplinary Punishment Ordinance. 

Chapter II 

Capture and Evacuation of Prisoners of War 

Article 9 

Whenever persons who are to be prisoners of war are taken into custody, 

an immediate inspection shall be made of their personal belongings. Arms, 

ammunition, and other objects of military use shall be confiscated. All other 

articles shall be either left in the possession of the prisoners or received for 

deposit. 

Article 10 
Commissioned officers among the prisoners of war mentioned in the 
preceding Article upon whom it is deemed necessary to confer special honor 
may be authorized by the commander of an army or of an independent division 
to retain swords belonging to them in their possession. 

In the case specified in the preceding paragraph the names of the officers 
together with the reasons for the action shall be reported to the Imperial 
Headquarters and the latter shall in turn notify the Minister of War of the 
matter. The swords retained by them shall be received for deposit, when they 
are taken in a prisoner of war camp. 

Article 11 
At the close of military engagement, the commander of an army or the 
commander of an independent division may, by an agreement with the 
enemy, repatriate or exchange the wounded or sick prisoners of war, and he 
may, if deemed expedient, set at liberty any prisoners of war; provided that 
said prisoner of war takes an oath that he will refrain from participating 



233 

further in any military engagements during the same war. 

In the case mentioned in the preceding paragraph, the rank, the number of 
prisoners of war, and the reasons for their release shall be reported to the 
Imperial Headquarters which in turn shall notify the Minister of War. 

Article 12 

Any unit which has captured prisoners of war shall interrogate each 
prisoner of war regarding his name, age, rank, place of origin, the unit to 
which he has been attached in his home country, and the date and the place at 
which he was wounded; and said unit shall prepare a roster of the prisoners of 
war, a prisoner of war journal, and a register of articles confiscated or 
received for deposit as prescribed in Article 9. 

When prisoners of war have been repatriated, exchanged, or set at liberty 
on parole, such facts shall be stated in the roster of the prisoners of war. 

Article 13 

Prisoners of war shall be segregated into officers and personnel lower than 
warrant officer, and they shall be evacuated under guard to the nearest 
communication center or to a transportation and communication authority. 

In the above case, objects received for deposit, the roster of prisoners of 
war, the prisoner of war journal, and the register of objects shall be sent 
along with the prisoners of war. 

Article 14 

Any unit, communication center, or transportation and communication 
authority which has made arrangements with a naval commander for the 
delivery of prisoners of war will get, along with the prisoners of war, objects 
kept for deposit, a roster of prisoners of war, a prisoners of war journal, and a 
register of objects. 

Article 15 

The commander of an army or the commander of an independent division 
shall promptly report the number of prisoners of war to be evacuated to the 
Imperial Headquarters, which shall notify the Ministry of War. 

Article 16 

When the Ministry of War has received the notice mentioned in the 
preceding article, it shall report to the Imperial Headquarters the port or 
other place at which the delivery of the prisoners of war is to be made, and the 
Imperial Headquarters shall in turn notify the Ministry of War as to the time 
and date of the arrival of the prisoners of war at the said places. 

The same procedure shall apply when the Ministry of War has received 
Notice regarding the delivery of naval prisoners of war. 

Article 17 

Any communication center or any transportation and communication 
authority which has received the delivery of prisoners of war in accordance 
with either Article 13 or 14 shall evacuate such prisoners under guard to the 
places mentioned in the preceding Article and then deliver them to the person 
authorized by the Ministry of War to receive them, together with the objects 
left for deposit, a roster of prisoners of war, a prisoner of war journal, and a 
register of objects. 



234 

Article 18 
The "Imperial Headquarters" shall read the "General Staff," in case no 
Imperial Headquarters has been established. 

Chapter III 
Imprisonment and Administration of Prisoner of War 

Article 19 

Repealed 
Article 20 
Army buildings, temples, and other buildings which are not detrimental to 
the honor and health of the prisoners of war and which are adequate enough to 
prevent their escape shall be assigned as prisoner of war camps. 

Article 21 
The commander of an army or the commander of a garrison who 
administers a prisoner of war camp (henceforth called the chief administrator 
of the prisoner of war camp) shall establish the standing orders of the prisoner 
of war camp and shall make a report thereof to the Minister of War and to the 
Director of Prisoners of War Information Bureau. 

Articles 22-25 

Repealed 

Article 26 

Inasmuch as all postal matter sent to or by prisoner of war are exempt from 

all postal charges by international agreement, the chief administrator of the 

prisoner of war camp shall provide for adequate postal procedures through 

arrangements with the post offices in the locality. 

Article 27 
The regulations for the administration of prisoners of war in prisoner of 
war camps shall be established by the chief administrator of the prisoner of 
war camp. 

The regulations mentioned in the preceding paragraph shall be reported to 
the Minister of War and to the Director of Prisoners of War Information 
Bureau. 

Chapter IV 

Miscellaneous Provisions 

Article 28 

The enemy wounded and sick who, after having received medical 

treatment at a hospital or a medical dressing station, are deemed to be unfit 

for military service shall be repatriated if they make an oath that they shall 

not bear arms again during the same war. However, this article shall not 

apply to persons who might play an important part in the war. 

Article 29 
The personal effects of a prisoner of war which have been deposited with a 
government office shall be returned to him upon his release. 

Article 30 
Articles and money left by deceased prisoners of war shall be sent to the 
Prisoner of War Information Bureau from the unit, government office, 
hospital, or medical dressing station which has jurisdiction over them. 



235 

However, in cases where the nature of the article is such that they cannot be 
preserved, they shall be sold and the proceeds thereof shall be sent. 

Article 31 
The wills of prisoners of war shall be given the same treatment as that 
given to the wills of the members of the Imperial Army at any unit, 
government office, hospital, or medical dressing station which has juris- 
diction over them, and they shall be sent to the Prisoner of War Information 
Bureau. 

Article 32 
Repealed 

Article 33 
When an application has been made to administer direct relief to a prisoner 
of war by a relief society which has been duly established with a charitable 
purpose, permission may be granted therefore, provided that it shall not 
violate any of the rules for the administration of the prisoners of war. 






236 

DOCUMENT NO. 57 

JAPANESE DISCIPLINARY LAW FOR PRISONERS OF WAR 

(9 March 1943) 

SOURCE 

International Military Tribunal for the Far East, Exhibit No. 1965-A, at 29 
(National Archives of the United States) 

NOTE 
This "Disciplinary Law," like the Japanese "Detailed Regulations for the 
Treatment of Prisoners of War" (DOCUMENT NO. 58), indicates that, even 
officially and publicly, the Imperial Japanese Army did not really intend to 

comply with the relevant provisions of the 1907 Hague IV Regulations 
(DOCUMENT NO. 33), by which Japan was bound, or of the 1929 Geneva 
Prisoner-of-War Convention (DOCUMENT NO. 49), by which Japan was not 
bound but which she had agreed to abide by, mutatis mutandis, during 
World War II (1941-1945). For example, the Hague IV Regulations (and the 
1929 Convention) provide that an unsuccessful attempt to escape subjects the 
offending prisoner of war to disciplinary (minor) punishment only. Article 7 of 
the Japanese Disciplinary Law, on the other hand, provides that the 
permissible punishment for this offense shall be either death or imprisonment 
for life to a minimum of imprisonment for one year; and as a matter of actual 
practice, the unsuccessful escapee could expect to be executed immediately 
upon recapture, without a trial and in a most cruel manner. (See, for example, 
DOCUMENT NO. 101 under the rubric "Excessive and Unlawful 
Punishment was Imposed.") 

TEXT 
DISCIPLINARY LAW FOR PRISONERS OF WAR 

Article 1 
This law applies to prisoners of war who have committed criminal offenses. 

Article 2 
The leader among a group of persons guilty of mob violence or mob 
intimidation shall be subject either to the death penalty or to hard labor or 
imprisonment for life. The other persons involved shall be subject to either 
hard labor or confinement for life or for a minimum of one year. 

Persons who have made preparations or conspired to commit the crimes 
mentioned in the preceding paragraph shall be subject to either hard labor or 
to confinement for life or for a minimum of one year. 

Article 3 
Prisoners of war who kill a person supervising, guarding, or escorting them 
shall be subject to the death penalty. 

Persons who have made preparations or conspired to commit the crime 
mentioned in the preceding paragraph shall be subject to either hard labor or 
to confinement for a minimum of two years. 



237 

Article 4 

Prisoners of war who inflict injury or commit any act of violence or 
intimidation against any person supervising, guarding, and escorting them 
shall be subject to either the death penalty, or to hard labor or to 
imprisonment for life or for a minimum of two years. 

The leader of a group of persons who have acted together in committing the 
offenses mentioned in the preceding paragraph shall be subject to the death 
penalty, or to hard labor or to imprisonment for life. The other persons 
involved shall be subject to either the death penalty or to hard labor or 
imprisonment for life or for a minimum of three years. 

Persons who have caused death in committing the offenses mentioned in 
the preceding two paragraphs shall be subject to the death penalty. 

Article 5 

Prisoners of war who defy or disobey the orders of persons supervising, 
guarding, or escorting them shall be subject to either the death penalty, or to 
hard labor or imprisonment for life or for a minimum of one year. 

The leader of a group of persons who have acted together in committing the 
offenses mentioned in the preceding paragraph shall be subject to either the 
death penalty or to hard labor or to imprisonment for life. The other persons 
involved shall be subject to either the death penalty, or to hard labor or to 
imprisonment for life or for a minimum of two years. 

Article 6 

Prisoners of war who insult persons supervising, guarding, or escorting 
them either in their presence or publicly shall be subject to either hard labor 
or imprisonment for a maximum of five years. 

Article 7 

The leader of a group of persons who have acted together in effecting an 
escape shall be subject to either the death penalty, or to hard labor or to 
imprisonment for life or for a minimum of ten years. The other persons 
involved shall be subject to either the death penalty, or to hard labor or to 
imprisonment for life or for a minimum of one year. 

Article 8 

Any attempts to commit any of the offenses mentioned in the first 
paragraphs of Articles 2, 3, and 4, the second paragraph of Article 4, and the 
preceding article shall be punishable. 

Article 9 

Persons on parole who break the parole shall be subject to either the death 
penalty, or hard labor, or imprisonment for life or for a minimum of seven 
years. 

When the persons mentioned in the preceding paragraph offer armed 
resistance, they shall be subject to the death penalty. 

Article 10 

Those persons who have taken an oath not to escape and who violate this 
oath shall be subject to either hard labor or imprisonment for a minimum of 
one year. Those persons who violate any other oaths shall be subject to a 
maximum often years. 



238 



Article 11 

A person who, having the intention of committing a disobedient act, incites 
other persons shall be deemed as a leader and be subject to hard labor or 
confinement for a minimum of one year and a maximum of ten years. The 
other persons involved shall be subject to hard labor or confinement for a 
minimum of six months and a maximum of five years. 

Article 12 

The provisions of Article 7 shall not apply to any person, who has been 
made a prisoner of war for the second time, for any offenses committed during 
his previous status as a prisoner of war. 






239 

DOCUMENT NO. 58 

JAPANESE DETAILED REGULATIONS FOR THE TREATMENT OF 

PRISONERS OF WAR 
(21 April 1943, as amended) 

SOURCE 

International Military Tribunal for the Far East, Exhibit No. 1965-A, at 7 

(National Archives of the United States) 

NOTE 
These "Detailed Regulations for the Treatment of Prisoners of War," like 
the "Disciplinary Law" (DOCUMENT NO. 57), are considerably more 
revealing of the actual maltreatment of prisoners of war which could be 
expected from the ImperialJapanese Army during World War II (1941-1945) 
than were the basic "Regulations for the Treatment of Prisoners of War" 
(DOCUMENT NO. 56) themselves; but even so, they still do not tell the 
whole story. For example, Article 5(1) of these Regulations requires 
prisoners of war to take an oath not to escape. This is in violations of the laws 
and customs of war. Article 5(2) of these Regulations provides that those 
prisoners of war to take an oath not to escape. This is in violation of the laws 
surveillance." Actually, when the British soldiers captured at Singapore 
refused to take the oath not to escape, they were denied food and water and 
they were physically maltreated. (See DOCUMENT NO. 101, under the 
rubrics "Prisoners and Internees Forced to sign Parole" and "Excessive and 
Unlawful Punishment was Imposed.") 

TEXT 

DETAILED REGULATIONS FOR THE TREATMENT OF 

PRISONERS OF WAR 

Article 1 

These detailed regulations provide for matters relating to the treatment of 

prisoners of war at prisoner of war camps. 

Artile 2 
The commander of an army or the commander of a garrison who 
administers prisoner of war camps (henceforth called the chief administrator 
of the prisoner of war camps) may, whenever necesssary, establish 
temporary detachments of a prisoner of war camp or of a branch thereof. 

Article 3 
Warrant officers and commissioned officers shall be separated from non- 
commissioned officers and enlisted men in the housing arrangement for 
prisoners of war and they shall be further sub-divided according to 
nationality, rank, and status, unless the imprisonment facilities do not permit 
such division. 

Article 4 
Orderlies may be chosen from prisoners of war who are enlisted men (or 



240 

non-commissioned officers, whenever necessary) to be attached to prisoners 
of war who are officers or warrant officers. However, the number of such 
orderlies shall ordinarily be one to every two or more officers. 

Article 5 

As soon as prisoners of war have been imprisoned, they shall be 
administered an oath forbidding them from making an escape. 

Prisoners of war who refuse to take the oath mentioned in the preceding 
paragraph shall be deemed to have intentions of escaping and shall be placed 
under strict surveillance. 

Article 6 

The policing of prisoners of war camps shall ordinarily be done by 
employees attached to such camps. A few members of the guards may be 
posted when necessary. 

Article 7 

Extreme care and stringent rules shall be adopted for the purpose of taking 
all possible precautions against the danger of fire at prisoner of war camps. 

Article 8 

Prisoners of war shall not be allowed to drink alcoholic liquors or smoke 
without authorization. 

Article 9 

A number of qualified persons may be chosen from the prisoners of war 
according to the total number of prisoners of war, conditions of housing, etc., 
in order to assist in the transmission of orders, presentation of petitions, 
prevention of fires, and the administration of the prisoner of war camp. 

Article 10 

Prisoners of war, whenever necessary, may be allowed to go outside the 
camp accompanied by a custodian. However, care shall be taken as to the 
choice of the area and provisions made for their control, particularly in regard 
to the prevention of their escape and their relationships with the local 
population. 

Article 11 

Persons who desire to enter the prisoner of war camps shall obtain 
permission from the commandant of the camp. However, in the case of 
foreigners, such permission shall be granted by the Minister of War. 

However, relatives of prisoners of war who reside outside of the Empire 
and who are not included in the preceding provision may obtain permission 
from the commandant of the camp according to the provisions made by the 
chief administrator of prisoner of war camps. 

Article 12 

An inquiry shall be made as to the object, status, occupation, etc., of any 
person who desires to enter a prisoner of war camp, and extreme care shall be 
taken for controlling them and for preventing espionage, and no persons shall 
be allowed to enter unless it is necessary. 

Article 13 

When an interview with a prisoner of war has been authorized, necessary 
restrictions regarding the place, the time of interview, and the range within 



241 

which the conversation may be conducted may be imposed for the purpose of 
control and a guard shall also be present at this interview. 

Article 14 
As soon as the prisoners of war have been interned, the commandant of the 
prisoner of war camp shall divide each nationality group of the prisoners of 
war into army, navy, air, and civilian personnel. With respect to the armed 
forces, a further division shall be made as to commissioned officers and 
enlisted men, including warrant officer, and the commandant shall send a 
report thereof to the Minister of War and to the Director of the prisoner of 
war Information Bureau. The same measures shall be taken when the 
prisoners of war are released or transferred to another camp. 

Article 15 

After the internment of prisoners of war, the commandant of the prisoner 
of war camp shall immediately record the name, nationality, unit, rank or 
status, and state of health of the prisoners of war on the form shown in the 
appendix and make a report thereof to the Director of the Prisoner of War 
Information Bureau. 

Article 16 

After the commandant of the prisoner of war camp has sent the report 
mentioned in the preceding article, he shall make an inquiry of the name, date 
of birth, nationality, rank or status, unit, place and date of capture, surnames 
of parents, place of origin, occupation, etc., and record them on individual 
record blanks to be supplied by the Prisoner of War Information Bureau, and 
he shall keep one copy at the prisoner of war camp and send another copy to 
the Director of the Prisoner of War Information Bureau. 

Article 17 

When a prisoner of war is removed from one prisoner of war camp to 
another, the individual record for said prisoner kept at the former camp shall 
be sent to the latter camp together with the prisoner. 

In the case of the death of the prisoner of war the individual record for such 
prisoner shall be kept in safe custody until the prisoner of war camp has been 
closed. The same shall apply in cases where prisoners of war have been 
released. 

When a war or an incident has terminated and a prisoner of war camp has 
been closed, all individual records in custody thereat shall be transmitted to 
the Prisoner of War Information Bureau. 

Article 18 

At the end of each month the commandant of the prisoner of war camp shall 
collect all matters concerning internments, removals, releases, deaths, 
escapes, control, work, pay, correspondence, sanitation, relief, propaganda, 
crimes, punishments, etc., and prepare a monthly report which shall also 
include a list of the prisoners of war and he shall report the same to the 
Minister of War and to the Director of Prisoner of War Information Bureau. 
However, on urgent matters, this report shall be submitted whenever it is 
necessary. 



242 

Article 19 
A journal shall be kept at each prisoner of war camp which shall record the 
administration, interviews, and other important items about the prisoners of 
war and which shall serve as material for future investigations. 

Said journal shall be transmitted to the Prisoner of War Information 
Bureau when the prisoner of war camp is closed. 

Article 20 
An infirmary (including recreation room) shall be established for the 
examination and treatment of prisoners of war whose conditions do not 
necessitate hospital treatment. 

Article 21 
Hospital wards shall be attached to prisoner of war camps, in the event that 
they are found to be necessary, in which patients requiring admittance shall 
receive treatment. 

Hospital wards shall be furnished with the necessary medical supplies, 
clothing, bedding, and other miscellaneous articles. 

Medical services for the hospital wards mentioned in the preceding articles 
can be rendered by staff members of the nearest army hospital in addition to 
their other duties. 

However, in cases of necessity, relief squads from the Japanese Red Cross 
Society may render medical services under the direction and supervision of a 
medical officer. 

Article 22 

[omitted in original] 

Article 23 

Members of the enemy medical personnel may assist in the medical 

treatments to be rendered at the infirmaries and hospital wards mentioned in 

Articles 21 and 22 whenever necessary. 

Article 24 
Prisoner of war patients who require special medical treatments and 
patients having contagious diseases may be admitted to an army hospital 
after consultation with the commandant of the prisoner of war camp and the 
director of the nearest army hospital. 

Article 25 
The Minister of War shall determine when the facilities for the handling of 
postal matter, postal money orders, and telegrams to be dispatched by the 
prisoners of war shall be open to them. 

Article 26 
The commandant of the prisoner of war camp shall be responsible for the 
censorship of postal matters, postal money orders, and telegrams sent by or 
to prisoners of war. 

Article 27 
All postal matters, postal money orders, and telegrams sent by or to 
prisoners of war shall be strictly censored, and if they are deemed to be 
prejudicial to the prevention of espionage or to the administration of the 
prisoners of war, they may be confiscated or prevented from being sent. 



243 

Article 28 

At some easily visible place on the face of all postal matter and postal 
money order sent by or to prisoners of war shall be stamped a seal-impression 
which identifies the censoring officer and designates the prisoner of war camp 
and which attests to the fact that these items have been duly censored. 

Article 29 

All postal matter addressed by a prisoner of war to his home government, 
unit, government office, military school, or warship, and all postal matter 
addressed by the latter to prisoners of war, and all postal matter sent by or to 
any important prisoner of war shall, if deemed necessary, be sent to the 
Prisoner of War Information Bureau for censorship. 

Article 30 

The number of postal matters to be dispatched by the prisoner of war, the 
paper to be used, and the instructions as to the contents, shall be determined 
by the commandant of the prisoner of war camp. Whenever possible, paper 
bearing the printed designation of the particular prisoner of war camp shall 
be used. 

Article 31 

Prisoners of war shall not be allowed to dispatch any postal matter or 
telegrams falling under the following heads, except those articles which fall 
under heads 1 and 2 and which have been especially approved by the 
commandant of the prisoner of war camp. 

1. Those which have as their object the communication of matters relative 
to military, political, financial, and economic affairs. 

2. Those addressed to prisoners of war at another prisoner of war camp. 

3. Those which employ any code or are suspected of employing any secret 
formulas. 

4. Those which have as their object the communication of any matter 
prejudicial to the Empire relative to the treatment of prisoners of war, etc. 

Article 32 

The commandant of the prisoner of war camp shall prescribe rules and 
regulations for the handling of postal matters, postal money order, and 
telegrams sent by or to prisoners of war, and he shall make report thereof to 
the Minister of War and to the Director of the Prisoner of War Information 
Bureau. 

Article 33 

The commandant of the prisoner of war camp shall determine the maximum 
amount of cash which a prisoner of war may retain in his possession, taking 
into consideration his rank. 

The maximum amount of cash mentioned in the preceding paragraph shall 
not be excessive, and the balance shall be kept for deposit in the custody of the 
finance officer at the prisoner of war camp. 

Article 34 

When other persons desire to make contributions of gifts and money to 
prisoners of war, the commandant of the prisoner of war camp shall inquire as 
to the contents and the reason for the contribution and if he deems it 



244 

permissible from the standpoint of the administration of the prisoners of war, 
he shall grant permission therefor. 

The same shall apply in cases where money and articles are sent by the 
prisoners of war. 

Article 34 Part 2 

Money given as contributions to prisoners of war and money left by 
prisoners of war who die during imprisonment shall be treated as cash not to 
be included in the annual revenues and expenditures. 

The same shall apply to the proceeds from articles left by deceased 
prisoners of war which are sold in accordance with the proviso of Article 30 of 
the Regulations for the Treatment of Prisoners of War. 

Article 35 

With approval of the chief administrator of the prisoner of war camps, each 
prisoner of war camp shall be provided with a canteen. 

Article 36 

If a prisoner of war desires to purchase articles of luxury or of daily use at 
his own expense elsewhere than at the canteen in the prisoner of war camp, 
the commandant of the prisoner of war camp may allow this if he deems it to 
be unobjectionable from the standpoint of the administration of the prisoners. 

Article 37 

When a prisoner of war dies while in internment, a ceremony appropriate 
to his rank or status shall be conducted. 

The corpse shall generally be buried in a proper place. However, it may be 
cremated after the will, the religion, and the wishes of the deceased's have 
been taken into consideration. 

When the corpse has been cremated according to the provisos of the 
preceding paragraph, the ashes may either be buried in a proper place or be 
kept in safe custody. 



245 
DOCUMENT NO. 59 

JAPANESE REGULATIONS ON THE WORK OF PRISONERS 

OF WAR 

(20 May 1943) 

SOURCE 

International Military Tribunal for the Far East, Exhibit No. 1965-A, at 14 

(National Archives of the United States) 

NOTE 
Like the Japanese "Regulations for the Treatment of Prisoners of War 
(DOCUMENT NO. 56), these Regulations are substantially in accordance 
with the relevant provisions of the 1907 Hague IV Regulations 
(DOCUMENT NO. 33) and the 1929 Geneva Prisoner-of-War Convention 
(DOCUMENT NO. 49), although they do fail to contain any reference to the 
restrictive provisions of those agreements prohibiting work that was 
excessive or that had to do with military operations. Actually, during World 
War II (1941-1945), the work required of prisoners of war by the Imperial 
Japanese Army, men who were always underfed and who were frequently 
seriously ill, was often so excessive and was often required to be performed 
under such adverse conditions as to cause an extremely high rate of mortality 
— an average of 27%, and sometimes reaching close to 50%; and no distinction 
was made between work connected with military operations and work not so 
connected. See, for example, DOCUMENT NO. 101, under the rubrics 
"Burma-Siam Railroad," "Illegal Employment, Starvation and Neglect of 
Prisoners [of War] and Internees," and "Consideration for Racial Needs — 
Work"; and DOCUMENT NO. 89. 

TEXT 
REGULATIONS ON THE WORK OF PRISONERS OF WAR 

Article 1 
Prisoners of war (excluding prisoners of war who are officers) may be 
employed on work according to the provisions of this order; however, these 
provisions shall not apply in cases where the Prisoner of War Dispatch 
Regulations are applicable. 

The work mentioned in the above paragraph shall be determined according 
to the state of health, skill, status in the home country, etc. , of the prisoner of 
war. 

Prisoners of war who are officers may be allowed to be employed on work of 
their own choosing, in which case these regulations shall apply; however, no 
pay shall be granted. 

Article 2 
The commandant of the prisoner of war camp can assign prisoners of war to 
labor details within the camp. 



246 

Article 3 

The commander of an army or the commander of a garrison (hereinafter 
called the chief administrator of prisoner of war camps) may order prisoners 
of war to be employed on work at any military organization outside the 
prisoner of war camp. In such a case the authorization of the Minister of War 
must previously be obtained regarding the number of prisoners, place, 
description, hours of work, and period of work, etc. , but no such authorization 
shall be necessary outside the Empire (which term shall herein after include 
Japan Proper, Chosen, and Taiwan). 

When the chief administrator of prisoner of war camps intends to order 
prisoners of war to be employed on work at any army organization outside the 
Empire, he shall immediately submit a report to the Minister of War 
regarding the number of prisoners, place, description, hours of work, and 
period of work, etc. 

Article 4 

The pay in cases where prisoners are to be employed on work in accordance 
with the provisions of the preceding two Articles shall be defrayed by the 
prisoner of war camp concerned. 

Article 5 

Persons who desire to employ prisoners of war outside of army units 
(except in areas outside the Empire) shall submit an application to the 
Minister of War for permission to employ prisoners of war and the same 
procedure shall apply to persons who desire to make any changes in the 
contents of the application or in the work permit approved by the Minister of 
War. 

The procedure for submitting the application for permission to employ 
prisoners of war, as mentioned in the preceding paragraph, shall be given in a 
separate proclamation. 

Article 6 

When the Minister of War has granted permission for the application 
referred to in the preceding paragraph, he shall determine the number of 
prisoners of war, the place of work, type of work, hours, pay, period of work, 
etc., and shall so notify the chief administrator of prisoner of war camps. 

Article 7 

When the chief administrator of prisoner of war camp [sic] has received the 
notice mentioned in the preceding paragraph, he shall make adequate 
provisions for the control of the prisoners of war and then shall proceed to set 
them at work. 

Article 8 

Persons who desire to employ prisoners of war outside an army unit after 
[sic] in any place outside the Empire shall submit an application for a work 
permit after [sic] the form shown in the appendix to the chief of [sic] 
administrator of prisoner of war camps for his approval and the same 
procedure shall apply to persons who desire to make any changes in the 
contents of the application or in the work permit approved by the chief 
administrator of prisoner of war camps. 



247 

Article 9 

When the chief administrator of prisoner of war camps has approved the 
application mentioned in the preceding Article, he shall make adequate 
provisions for the administration of the prisoners of war and shall proceed to 
set them to work. 

Article 10 

When the chief administrator of prisoner of war camps has set the 
prisoners of war to work outside the army units, as mentioned in a preceding 
Article, he shall submit a report to the Minister of War stating the number of 
prisoners of war employed, place of work, type of work, pay, hours, period of 
work, etc. 

Article 11 

Applications for permission to employ prisoners of war by a public body or 
corporation shall be submitted by the representatives. (TN. The application 
obviously must be submitted to the chief administrator of prisoner of war 
camps.) 

Article 12 

Persons other than military personnel who have received permission to 
employ prisoners of war (hereafter called the employer of prisoners of war) 
shall offer the necessary number of guards to be determined by the 
commandant of the prisoner of war camp for the purpose of control during the 
period of employment. Said guards shall be under the direction of the 
commandant. 

Article 13 

The employer of prisoners of war shall assume the responsibility of 
directing the work of the prisoners of war under the supervision of the 
commandant of the prisoner of war camp. In directing the aforesaid work the 
employer may rely on use of guards mentioned in the preceding Article. 

Article 14 

The employer of prisoners of war shall deliver monthly on or before the 
date fixed by the commandant of the prisoner of war camp, the wages 
prescribed by the commandant. 

Article 15 

The employer of prisoners of war may offer donations of money or gifts to 
the commandant of the prisoner of war camp to be distributed for purpose of 
encouraging the prisoners of war in their work or for mitigating their 
hardships. 

When the commandant of the prisoner of war camp deems the contribution 
mentioned in the preceding paragraph to be unobjectionable from the 
standpoint of the administration of the prisoners of war, he may allow the 
contribution and distribute them to the prisoners of war as required. 

Article 16 

The employer of prisoners of war shall at the end of each month submit a 
report to the commandant of the prisoner of war camp in conformity to his 
specifications on the progress of the work of the prisoners of war. 



248 



Article 17 

When any employer of prisoners of war has violated any of the provisions of 
the work permit approved either by the Minister of War or by the chief 
administrator of prisoner of war camps pursuant to Article 5 or 8, or the 
regulations specified by the commandant of the prisoner of war camp for the 
administration of the prisoners of war pursuant to Article 7 or 9; the Minister 
of War (if outside the Empire, the chief administrator of prisoner of war 
camps) may cancel the authority to employ prisoners of war. 

In addition to the provision of the preceding paragraph, the Minister of 
War can cancel the authority to employ prisoners of war whenever he deems 
it necesssary. 

In the case mentioned in paragraph 1, the employer of prisoners of war may 
not demand compensation for any damages caused by the revoking of such 
authorization. 

Article 18 

The employer of prisoners of war shall not perform any acts affecting the 
prisoners of war which are not provided for in this order unless special 
permission has been given by the Minister of War for the acts. 

Article 19 

The pay delivered by the employer of prisoners of war pursuant to Article 
14 shall be kept in safe custody by a finance officer at the prisoner of war camp; 
however a part thereof shall be paid to the national treasury in the form of a 
supplement allowances to be granted to prisoners of war. The amount to be 
paid shall be specified in another Article. 

The pay which is kept in safe custody by a finance officer at the prisoner of 
war camp as mentioned in the preceding paragraph shall be considered as 
cash not to be included in the annual revenues and expenditures. 

Article 20 

The money held in custody by a finance officer at the prisoner of war camp 
according to the previous Article shall be distributed together with the 
money mentioned in Article 4 to the prisoners of war concerned in a manner to 
be determined by the commandant of the prisoner of war camp. 

Additional Provision 

This Order shall become effective on and after day of its promulgation. 

Persons who have been employing prisoners of war outside army units 
according to the provisions heretofore in effect shall submit an application to 
the Minister of War for permission to employ prisoners of war in accordance 
with either Article 5 or 8 within thirty days (sixty days, if outside the Empire) 
after the date on which this order becomes effective. 

Additional Provision 

This order shall become effective on and after 1 August 1943. 



249 

DOCUMENT NO. 60 

MILITARY ARMISTICE BETWEEN THE ALLIED FORCES AND 
ITALY (3 September 1943) and INSTRUMENT OF SURRENDER 

(29 September 1943) 

SOURCES 
61 Stat. 2740 
3 Bevans 769 
40AJILSupp. 1 

NOTE 
This Military Armistice took Italy out of World War II (1939-1945) as a 
member of the Axis and enabled her to reenter the War on the side of the 
Allied Powers. Like other agreements of this nature (see, for example, 
DOCUMENT NO. 50 and DOCUMENT No. 64), there was a provision for 
the immediate handing over of all members of the armed forces of the victors, 
the Allied Powers, held by Italy, but no provision for a reciprocal disposition 
with respect to the members of the Italian armed forces held by the Allied 
Powers. The "Instrument of Surrender," signed 26 days later (sometimes 
labelled "Additional Conditions of Armistice"), was to the same effect. (The 
major problem here was to attempt to prevent the Germans, who continued 
the war, from obtaining custody of the members of the Allied armed forces 
who were prisoners of war of the Italians and transferring them to Germany. ) 

EXTRACTS 
Military Armistice: 

3. All prisoners or internees of the United Nations to be immediately 
turned over to the Allied Commander in Chief, and none of these may now or 
at any time be evacuated to Germany. 

Instrument of Surrender: 

32. (A) Prisoners of war belonging to the forces of or specified by the United 
Nations and any nationals of the United Nations, including Abyssinian 
subjects, confined, interned, or otherwise under restraint in Italian or 
Italian-occupied territory will not be removed and will forthwith be handed 
over to representatives of the United Nations or otherwise dealt with as the 
United Nations may direct. Any removal during the period between the 
presentation and the signature of the present instrument will be regarded as 
a breach of its terms. 



250 

DOCUMENT NO. 61 

REXv.KREBS 
(Magistrate's Court of the County of Renfrew, Ontario, Canada, 

7 October 1943) 

SOURCES 
[1943] 4D.L.R. 553 (Ont.) 
80 Can. C.C. 279 
38 AJIL 505 
12 Ann. Dig. 407 

NOTE 
This decision of an inferior Canadian court involves the theft by an escaping 
prisoner of war of a number of items all of which, it was determined, would be 
of use to him in effectuating his escape. As a result, the court found him not 
guilty of theft. This same rule of law was actually later applied in Rex v. 
Brosig (DOCUMENT NO. 66), even though a different finding on the facts 
was reached in that case. While the decision in the present case was 
specifically rejected in two later Canadian cases (DOCUMENT NO. 62 and 
DOCUMENT NO. 67), the rule exempting prisoners of war from criminal 
responsibility for thefts of property for use in facilitating escape and not for 
purposes of self-enrichment has since been included as a part of Article 93(2) 
of the 1949 Geneva Prisoner-of-War Convention (DOCUMENT NO. 108). 
The maximum punishment for such an offense is now disciplinary pun- 
ishment. 

EXTRACTS 

Galligan P.M. : — Two weeks ago this accused was brought before me on 
a charge of breaking and entering and theft and elected for trial before me. On 
hearing the evidence I reserved judgment until to-day. 

There seems to be very little authority in the way of case law for the 
determination of matters of this kind, and although I looked at all the 
authorities available here, I could find nothing exactly in point. 

The accused is a German, a prisoner of war, who was a wireless operator on 
a German merchant ship. He was taken prisoner in 1939. He was confined at 
various places throughout the Empire, the last of these being the camp for 
prisoners of war at Petawawa Military Camp in this County. In July of this 
year he escaped from his confinement and was later retaken at Hornepayne, 
Ontario. Some time between the morning of July 16th and July 18th of this 
year he broke into a small house or cabin owned by one Herman Gould in the 
Township of Fraser, ate all the food he could find in the house and left taking 
with him a rifle, a quantity of ammunition therefor, a pouch, a watch, a flash 
light, batteries, a safety razor, a can opener, a jack knife, some matches and 
several articles of clothing. 

All of the articles taken admittedly are articles which would be useful to a 



251 

man who expected to be in the bush for some time. All, in my opinion, can 
reasonably be considered necessaries under the circumstances, with the 
possible exception of the rifle and ammunition, and it is not difficult to think of 
circumstances wherein a lone man, in what is very near to being a wilderness, 
would find the rifle and ammunition also necessaries. This is particularly so 
when that man is an enemy of the country in which he finds himself, and is 
desirous of escaping from that country. He could not, under the circum- 
stances, approach any of the very few settlers in that part of the country for 
assistance, because his full desire was to escape. 

Although it has been represented to me that the onus is on the accused to 
show that the articles taken by him were essential for the purpose of assisting 
him in his escape, the evidence does not show this conclusively. In the 
evidence for the prosecution it is admitted that all the articles taken would be 
articles useful to a man situate as the accused was. 

I believe that I have a right to draw upon my knowledge of the country in 
which the accused found himself in deciding whether or not the accused could 
reasonably consider that the articles taken by him were necessaries. 

It is necessary to realize that the man could not get shelter except in a 
clandestine way. He was in part of the country where he might reasonably 
expect to meet with dangerous animals, and while to the denizen of the 
country bears and wolves may not be considered dangerous, they are so 
considered by those who are without real experience in the bush. Un- 
questionably, the accused was in what is practically a wilderness. He had no 
legitimate means of securing food, clothing, those things which would be 
necessary to provide him with fuel and light when needed, and protection 
against what would be reasonably considered by him danger from wild 
animals in the country in which he found himself. 

It is my opinion that everything which the accused stole from Gould's house 
or cabin would be necessary, or extremely useful, to the accused in his 
endeavour to escape from Canada. 

It has been suggested to me that once the prisoner escaped from the 
confinement of the prisoners' camp at Petawawa he was at liberty. In the case 
of the prisoner, I would think that to say that would be analogous to saying 
that a prisoner in a penitentiary would be at liberty when he had escaped from 
his cell, although still within the confines of the penitentiary. My opinion is 
that the prison of this accused is the domains of the United Nations, and until 
he passed from those domains he could not be said to be at liberty. I know of 
no authorities for this proposition, and have been unable to find any. Neither 
have I been able to find any to the contrary. The proposition appears to me to 
be a reasonable one. Even if the accused were to be considered as being at 
liberty, once he escaped from the confines of the prison camp at Petawawa, 
the question arises as to what are his rights in an endeavour to preserve that 
liberty. 

Our Courts have assumed jurisdiction to try prisoners who are aliens, but 
in cases such as this, where the accused has been brought within the 
territorial jurisdiction of our Courts, our Courts have been careful to 



252 



differentiate between cases where the alleged offence was committed for the 
purpose of obtaining or preserving liberty and where it was committed for 
some other purpose. 

The only question then is as to whether or not a person such as the accused, 
attempting to escape, or, having escaped, attempting to preserve that 
liberty, is punishable for offences against our law if the acts are reasonably 
necessary or reasonably calculated to facilitate his escape or to preserve his 
liberty. 

In my opinion — although as I have said I can find no authority directly in 
point — the accused is not punishable at common law for an attempt to 
escape. He is not punishable at common law for doing anything reasonably 
calculated to assist in that escape, and in my opinion the same holds for 
anything done in an endeavour to preserve his liberty once gained. 

This accused owes no allegiance to the Crown. He is an open and avowed 
enemy of the Crown, a man taken in war and a man who, if it is not his duty, 
may quite reasonably feel that it is his duty to escape from the domains of his 
captor state, and, if he can, return to the state to which he owes allegiance and 
perform his duty to that state. 

Whatever may be finally decided in this matter, my opinion is that a 
prisoner of war is not punishable for anything he may reasonably do to 
escape, or having escaped, to preserve his liberty. My opinion also is that 
what the accused did was done with a view to facilitating his escape. He, 
therefore is not guilty of any crime. 

I may say that I regret that this prosecution was not proceeded with by 
way of indictment so that it could have come in the first instance before a 
Court of superior jurisdiction. I sincerely hope that my decision will be 
appealed and that in future we will have some binding authority in a case such 
as this. Unfortunately most of the trials in the past have not had this 
particular point for decision, and unfortunately no Court, so far as I have been 
able to ascertain, has taken note of this issue at all. In this regard I may refer 
to the Depardo case where, although the matter was reserved for the opinion 
of the Judges and able argument was advanced to the Court by counsel for the 
Crown and the accused, no judgment was ever given by the Court, but the 
prisoner was — by what authority I do not know — discharged. 

I have come to the conclusion that the prisoner is not guilty and so must 
dismiss the charge. 



253 

DOCUMENT NO. 62 

REX v. SHINDLER ET AL 
(Police Court, Alberta, Canada, 15 July 1944) 

SOURCES 

[1944] 3W.W.R. 125(Alta.) 

82 Can. C.C. 206 

12 Ann. Dig. 403 

NOTE 

This is another of the cases involving thefts committed by prisoners of war 
during the course of unsuccessful attempts to escape. The accused prisoners 
of war had stolen a motor vehicle, an item which certainly could have been of 
assistance to them in effectuating their escape. Nevertheless, this inferior 
trial court rejected the reasoning of Rex v. Krebs (DOCUMENT NO. 61) and, 
based upon a strict interpretation of Article 51(1) of the 1929 Geneva 
Prisoner-of-War Convention (DOCUMENT NO. 49), found them guilty of 
the theft of a motor vehicle and sentenced them to one year's imprisonment at 
hard labor. Subsequently, one Canadian appellate court impliedly agreed 
with the law expressed in the Krebs Case, even though it found against the 
accused prisoners of war on the facts (DOCUMENT NO. 66), while another 
Canadian appellate court agreed with the law expressed in the present case 
(DOCUMENT NO. 67). Article 93(2) of the 1949 Geneva Prisoner-of-War 
Convention (DOCUMENT NO. 108) now specifically provides that prisoners 
of war who commit offenses against property to facilitate their escape, and 
not for purposes of self-enrichment, may be given disciplinary punishment 
only. 

EXTRACTS 
Beaumont, P.M. — With reference to the jurisdiction of the Canadian 
Courts to try prisoners of war, confined in Canada, for crimes alleged to have 
been committed outside their internment camp, I have come to the conclusion 
that the Canadian Courts have jurisdiction. I come to that conclusion after 
considering with great care the judgment of the learned police magistrate 
who presided in the case of Rex v. Krebs, 80 C.C.C. 279, [1943] 4 D.L.R. 553 
(Ont.), and the cases therein referred to, and also the notice of appeal in Rex 
v. Brosig (not reported). The learned magistrate in the case just cited, Rex v. 
Krebs, appears to have read and considered a great number of ancient cases, 
dating back to 1775, and many learned treatises on the legal position of 
prisoners of war in a detaining country, but he seems to have completely 
overlooked the provisions of the International Convention relative to the 
treatment of prisoners of war at Geneva, July 27, 1929. He certainly never 
refers to them. I respectfully think that the learned magistrate's judgment 
might have been correct before The Geneva Convention, but I regret that I 
cannot agree with his judgment or views since that date. And so, with 



254 

deference, I refuse to follow his judgment. 

Articles 45 and 51 of The Geneva Convention lead me inevitably to the 
conclusion I have reached. Article 45 says: 

"Prisoners of war shall be subject to the laws, regulations, and orders 
in force in the armed forces of the detaining Power." 
Article 51 says: 

"Attempted escape, even if it is not a first offence, shall not be 
considered as an aggravation of the offence in the event of the prisoner of 
war being brought before the courts for crimes or offences against 
persons or property committed in the course of such attempt." 
So also do Articles 52 and 53. Article 52 says: 

"Belligerents shall ensure that the competent authorities exercise the 
greatest leniency in considering the question whether an offence 
committed by a prisoner of war should be punished by disciplinary or by 
judicial measures. This provision shall be observed in particular in 
appraising facts in connection with escape or attempted escape." 

"Prisoners qualified for repatriation against whom any prosecution for 

a criminal offence has been brought may be excluded from repatriation 

until the termination of the proceedings and until fulfilment of their 

sentence, if any; prisoners already serving a sentence of imprisonment 

may be retained until the expiry of the sentence." 

Articles 54, 55 and 56 refer to the punishment, disciplinary punishment, 

thereby distinguishing that punishment from the punishment referred to in 

Articles 51 and 52. 

In Article 75 provision is made for dealing with prisoners of war subject to 
criminal proceedings for a crime or offence at common law, and providing also 
for the prisoners of war being detained until the expiration of the sentence. 

Articles 60 to 67, both inclusive, deal solely with the rights and so forth of 
prisoners of war in judicial proceedings. 

Ch. 3, Part 2, of The Geneva Convention deals with disciplinary pun- 
ishments. Part 3 deals with judicial proceedings. The only judicial pro- 
ceedings I can contemplate are civil proceedings to answer for crimes 
committed by prisoners of war in our civil Courts. The prisoner of war in 
Canada is in the same position as a member of His Majesty's Canadian 
Forces. 

For the above reasons I am clearly of the opinion that, in spite of the 
judgment referred to, a prisoner of war in this country, whose country was a 
signatory to The Geneva Convention, is subject to the civil laws of this 
country for crimes committed while escaping or attempting to escape, or 
after he has escaped from lawful custody. 

Now, with reference to the facts: On the night of July 11 and 12, 1944, a car 
belonging to one Jacobs disappeared from his yard on sec. 8, tp.6, rge. 22, 
west of the fourth meridian. The car had in it at the time an old coat, Ex. 1. On 
the night of July 12 and 13, 1944, the four accused prisoners of war at the 
hostel near Magrath, and near the home of the owner of the car, escaped. One 
of them, Schulte, frequently went to Jacobs' farm and must have known of the 



255 

car. Later the car was found abandoned, plentifully bespattered with white 
pepper, about 15 miles away from where it had been taken from. 

On July 13 one Peter Entz met the accused at his well about 10 a.m., 27 
miles from the Jacobs home and prisoner of war hostel. Later, near there, the 
Royal Canadian Mounted Police found all four of the accused together some 
way from the Entz well. 

Being brought to Lethbridge under arrest as escaped prisoners, the 
accused were put through the ordinary routine search of their belongings. In 
the belongings was a large quantity of white pepper, that is, a large quantity 
for such a commodity, and the coat of Jacobs, which was missing from the car 
when it was recovered. When asked where they got the coat, Schulte said 
they got it in the car. I am of the opinion that was only the one car they could 
have referred to, and that was the car taken from Jacobs' yard. 

Taking the evidence as a whole, I am of the opinion that the Crown has 
proved beyond a reasonable doubt that the four accused stole the car in 
question, and I find each of them guilty of the charge laid against them. 



256 

DOCUMENT NO. 63 

AGREEMENT FOR AN ARMISTICE BETWEEN THE 
SOVIET UNION AND THE UNITED KINGDOM, ACTING ON BEHALF 
OF ALL THE UNITED NATIONS AT WAR WITH FINLAND, ON THE 

ONE HAND, AND FINLAND ON THE OTHER HAND 
(Moscow, 19 September 1944) 

SOURCES 
39 AJIL Supp. 85 
145 BFSP 513 

NOTE 

Unlike most armistice agreements entered into at a point in time where the 
war continues between other belligerents (see, for example, DOCUMENT 
NO. 50 and DOCUMENT NO. 64), this agreement has a reciprocal provision 
concerning the repatriation of prisoners of war. This can probably be 
explained by the fact that while Finland could not possibly have won its war 
with the Soviet Union, when this armistice was signed Finland had not really 
lost it. 

EXTRACTS 

Article 10. Finland undertakes immediately to transfer to the Allied 
(Soviet) High Command, to be returned to their homeland, all Soviet and 
allied prisoners of war now in her power and also Soviet and allied nationals 
who have been interned in or deported by force to Finland. From the moment 
of signing the present agreement and up to the time of repatriation Finland 
undertakes to provide at her cost for all Soviet and allied prisoners of war and 
also nationals who have been deported by force and also interned, adequate 
food, clothing, and medical service in accordance with hygienic requirements, 
and also with means of transport for their return to their homeland. At the 
same time Finnish prisoners of war and interned persons now located on the 
territory of allied States will be transferred to Finland. 

Article 13. Finland undertakes to collaborate with the allied Powers in the 
apprehension of persons accused of war crimes and in their trial. 



257 
DOCUMENT NO. 64 

AGREEMENT CONCERNING AN ARMISTICE BETWEEN 

THE UNION OF SOVIET SOCIALIST REPUBLICS, 

THE UNITED KINGDOM OF GREAT BRITAIN AND 

NORTHERN IRELAND, AND THE UNITED STATES OF AMERICA 

ON ONE HAND AND HUNGARY ON THE OTHER 

(Moscow, 20 January 1945) 

SOURCES 
59 Stat. 1332 
3 Bevans 995 
39AJILSupp. 97 
145 BFSP 788 

NOTE 
In this Armistice Agreement Hungary admitted its defeat by the Allied 
Powers (United Nations). It had already switched sides by declaring war on 
Germany. Nevertheless, like other armistice agreements between a victor 
and a vanquished (see, for example, DOCUMENT NO. 50), the provision 
with respect to the release of prisoners of war was unilateral, calling for the 
release of Allied prisoners of war but making no mention of the fate of the 
members of the Hungarian armed forces held by the Allies. Actually, it was 
only the Peace Treaty with Hungary, signed on 10 February 1947 
(DOCUMENT NO. 90), which provided for the release and repatriation of 
these latter; and even then further bilateral agreements were required. 

EXTRACTS 

1. (a) Hungary has withdrawn from the war against the Union of Soviet 
Socialist Republics and other United Nations, including Czechoslovakia, has 
severed all relations with Germany and has declared war on Germany. 

(b) The Government of Hungary undertakes to disarm German armed 
forces in Hungary and to hand them over as prisoners of war. 

4. The Government of Hungary will immediately release all allied 
prisoners of war and internees. Pending further instructions the Government 
of Hungary will at its own expense provide all allied prisoners of war and 
internees, displaced persons and refugees, including nationals of Czecho- 
slovakia and Yugoslavia, with adequate food, clothing, medical services, and 
sanitary and hygienic requirements, and also with means of transportation 
for the return of any such persons to their own country. 



258 

DOCUMENT NO. 65 

AGREEMENT BETWEEN THE UNITED STATES OF AMERICA 

AND THE UNION OF SOVIET SOCIALIST REPUBLICS 

RESPECTING LIBERATED PRISONERS OF WAR AND CIVILIANS 

LIBERATED BY FORCES OPERATING UNDER SOVIET COMMAND 

AND FORCES OPERATING UNDER UNITED STATES OF 

AMERICA COMMAND 
(Yalta, 11 February 1945) 

SOURCES 
59 Stat. 1874 
11 Bevans 1286 
149 BFSP 934 

For. Rel. , The Conferences at Malta 
and Yalta, 1945, at 985 
7 Documents on American Foreign Relations, 
1944-1945, at 356 

NOTE 

Although signed by military officers, this agreement was actually a 
political decision. It is almost unique in that it is an agreement between two 
allies for the care and repatriation of members of the armed forces of one who 
are freed from enemy prisoner-of-war custody by the other. (A similar 
agreement was entered into by the Soviet Union with the United Kingdom 
and the Commonwealth countries at the same time. 147 BFSP 1047.) This 
situation has always arisen where a war is fought with allies, but normally the 
turnover is automatic and is accomplished by the military commanders 
without any need for a formal political decision and signed agreement. 
Subsequent developments disclosed that Stalin and the Soviet Union were 
fully aware of the fact that, given their choice, as Russian prisoners of war 
had been in the agreements entered into by the Soviet Union in its early years 
(see, for example, DOCUMENT NO. 38, DOCUMENT NO. 45, and 
DOCUMENT NO. 46), many members of the Soviet armed forces who had 
been prisoners of war would have elected to be released, but not repatriated. 
As a result, the charge is often made that this agreement reached at Yalta 
was responsible for causing thousands of suicides among Russian prisoners of 
war recovered by U.S. forces; and that it was also responsible for placing the 
Soviet Union in a position to execute other thousands who were repatriated, 
and to exile still other thousands to Siberia. 

TEXT 

The Government of the United States of America on the one hand and the 
Government of the Union of Soviet Socialist Republics on the other hand, 
wishing to make arrangements for the care and repatriation of United States 
citizens freed by forces operating under Soviet command and for Soviet 



259 

citizens freed by forces operating under United States command, have 
agreed as follows: — 
Article 1 . 

All Soviet citizens liberated by the forces operating under United States 
command and all United States citizens liberated by the forces operating 
under Soviet command will, without delay after their liberation, be separated 
from enemy prisoners of war and will be maintained separately from them in 
camps or points of concentration until they have been handed over to the 
Soviet or United States authorities, as the case may be, at places agreed upon 
between those authorities. 

United States and Soviet military authorities will respectively take the 
necessary measures for protection of camps, and points of concentration from 
enemy bombing, artillery fire, etc. 
Article 2. 

The contracting parties shall ensure that their military authorities shall 
without delay inform the competent authorities of the other party regarding 
citizens of the other contracting party found by them, and will at the same 
time take the necessary steps to implement the provisions of this agreement. 
Soviet and United States repatriation representatives will have the right of 
immediate access into the camps and points of concentration where their 
citizens are located and they will have the right to appoint the internal 
administration and set up the internal discipline and management in 
accordance with the military procedure and laws of their country. 

Facilities will be given for the despatch or transfer of officers of their own 
nationality to camps or points of concentration where liberated members of 
the respective forces are located and there are insufficient officers. The 
outside protection of and access to and from the camps or points of 
concentration will be established in accordance with the instructions of the 
military commander in whose zone they are located, and the military 
commander shall also appoint a commandant, who shall have the final 
responsibility for the overall administration and discipline of the camp or 
point concerned. 

The removal of camps as well as the transfer from one camp to another of 
liberated citizens will be effected by agreement with the competent Soviet or 
United States authorities. The removal of camps and transfer of liberated 
citizens may, in exceptional circumstances, also be effected without pre- 
liminary agreement provided the competent authorities are immediately 
notified of such removal or transfer with a statement of the reasons. Hostile 
propaganda directed against the contracting parties or against any of the 
United Nations will not be permitted. 
Article 3. 

The competent United States and Soviet authorities will supply liberated 
citizens with adequate food, clothing, housing and medical attention both in 
camps or at points of concentration and en route, and with transport until 
they are handed over to the Soviet or United States authorities at places 



260 

agreed upon between those authorities. The standards of such food, clothing, 
housing and medical attention shall, subject to the provisions of Article 8, be 
fixed on a basis for privates, non-commissioned officers and officers. The basis 
fixed for civilians shall as far as possible be the same as that fixed for privates. 

The contracting parties will not demand compensation for these or other 
similar services which their authorities may supply respectively to liberated 
citizens of the other contracting party. 
Article U- 

Each of the contracting parties shall be at liberty to use in agreement with 
the other party such of its own means of transport as may be available for the 
repatriation of its citizens held by the other contracting party. Similarly each 
of the contracting parties shall be at liberty to use in agreement with the 
other party its own facilities for the delivery of supplies to its citizens held by 
the other contracting party. 
Article 5. 

Soviet and United States military authorities shall make such advances on 
behalf of their respective governments to liberated citizens of the other 
contracting party as the competent Soviet and United States authorities shall 
agree upon beforehand. 

Advances made in currency of any enemy territory or in currency of their 
occupation authorities shall not be liable to compensation. 

In the case of advances made in currency of liberated non-enemy territory, 
the Soviet and United States Governments will effect, each for advances 
made to their citizens necessary settlements with the Governments of the 
territory concerned, who will be informed of the amount of their currency 
paid out for this purpose. 
Article 6. 

Ex-prisoners of war and civilians of each of the contracting parties may, 
until their repatriation, be employed in the management, maintenance and 
administration of the camps or billets in which they are situated. They may 
also be employed on a voluntary basis on other work in the vicinity of their 
camps in furtherance of the common war effort in accordance with 
agreements to be reached between the competent Soviet and United States 
authorities. The question of payment and conditions of labour shall be 
determined by agreement between these authorities. It is understood that 
liberated members of the respective forces will be employed in accordance 
with military standards and procedure and under the supervision of their own 
officers. 
Article 7. 

The contracting parties shall, whenever necessary, use all practicable 
means to ensure the evacuation to the rear of these liberated citizens. They 
also undertake to use all practicable means to transport liberated citizens to 
places to be agreed upon where they can be handed over to the Soviet or 
United States authorities respectively. The handing over of these liberated 
citizens shall in no way be delayed or impeded by the requirements of their 
temporary employment. 



261 

Article 8. 

The contracting parties will give the fullest possible effect to the foregoing 
provisions of this Agreement, subject only to the limitations in detail and 
from time to time of operational, supply and transport conditions in the 
several theatres. 
Article 9. 

This Agreement shall come into force on signature. 



262 

DOCUMENT NO. 66 

REX v. BROSIG 

(Ontario, Canada, Court of Appeals, 

1 March 1945) 

SOURCES 
[1945] 2D.L.R. 232 
12 Ann. Dig. 404 
83 Can. C.C. 199 

NOTE 

Although the problem with respect to punishment for offenses committed 
by a prisoner of war during the course of an attempted escape has confronted 
civilian courts only rarely, this is probably because the offending prisoner of 
war has usually been tried by a military court, and not because the problem 
has not arisen. In fact, unlike Article 51(1) of the 1929 Geneva Prisoner-of- 
War Convention (DOCUMENT NO. 49), which, as the present case 
demonstrates, was not exactly clear on the matter, Article 93(2) of the 1949 
Geneva Prisoner-of-War Convention (DOCUMENT NO. 108) specifically 
immunizes the prisoner of war from punishment for offenses committed in aid 
of an attempted escape with two exceptions: (1) those involving violence 
against life or limb; and (2) those involving theft with the intention of self- 
enrichment. The decision in the present case would probably be correct even 
in the light of the 1949 Convention because of the specific finding made by the 
trial court that certain of the stolen items were taken, not to aid the escape 
effort, but "for his own comfort." 

EXTRACTS 

ROBERTSON C.J.O.: — I have had the privilege of reading the reasons for 
judgment prepared by Mr. Justice Gillanders, and I concur in the conclusion 
reached by him. 

Any exemption that this prisoner of war may have from the criminal law of 
Canada can, I think, only be such as may be found in the Convention relating 
to the treatment of prisoners of war, concluded at Geneva, and dated July 27, 
1929. While, no doubt a body of international law that has made great changes 
in the position of a prisoner of war, has developed since the time when 
prisoners of war were put to death, and, as more humane notions prevailed, 
that practice gave way to that of making slaves of them, and, still later, of 
putting them to ransom, it is in comparatively recent times that ar- 
rangements came to be made between warring nations, for the exchange of 
prisoners between the States themselves. There does not, however, appear 
to be any rule of international law, apart from whatever the Conventions 
between States may provide, whereby prisoners of war are entitled to 
exemption from the municipal laws of the country where they are held 
prisoner. 



263 

The Convention of 1929, in its articles dealing with prisoners of war, is not 
silent in respect to judicial proceedings against them, as distinguished from 
disciplinary punishment administered by the military authorities. It is plain 
from its express provisions that judicial proceedings are contemplated, such 
as may be taken against members of the armed forces of the detaining power 
who offend. ^ ^ ^ ^ + 

No doubt, cases will arise where it becomes a question whether the conduct 
of a prisoner of war is more properly to be regarded as a matter for military 
discipline, rather than for judicial proceedings as a breach of the criminal law. 
The question put by Lord Campbell in Reg. v. Sattler (1848), Dears. & Bell 
525 at p. 543, 169 E.R. 1105, quoted by my brother Gillanders in his judgment 
in this case, may serve as an illustration. No such question arises in this case. 
The "looting" of the mail bag was not an act necessary for the escape of the 
prisoner of war. In my opinion it stands upon no different or higher footing 
than a similar act committed by a member of the armed forces of Canada. The 
act served no military purpose. It was an offence against the civil power for 
the personal advantage of the respondent. 

In view of the considerations that I have stated, it is, in my opinion, the 
duty of the Court to deal with the charge against the respondent in the same 
way as we would deal with a similar charge against a member of the armed 
forces of Canada. The charge of stealing a parcel sent by parcel post was 
proved. His status as a prisoner of war does not exempt him from conviction, 
and it only remains to fix the penalty. No doubt, there were mitigating 
circumstances, and it so happens that since this charge was laid, the section of 
the Criminal Code that applies, has been amended so that we are able to 
prescribe for this offence a less severe sentence than a term of three years' 
imprisonment, which was formerly the minimum sentence allowed. I agree 
with my brother Gillanders that a term of two months' imprisonment is 
proper in the circumstances of this case. 

Supplementing the references to authorities by my brother Gillanders, I 
refer to Wheaton's International Law, 7th ed. , vol. 2. pp. 177//. ; an article on 
Prisoners of War in 190 L.T. Jo. p. 150, and an article in 35 American Journal 
of International Law (pp. 522-3), dealing with escaped prisoners of war in a 
neutral jurisdiction. 

Henderson J. A.: — I have had the privilege of reading the opinions of my 
Lord the Chief Justice and of my brother Gillanders, with which I agree. 

Gillanders J. A.: — The respondent is a German prisoner of war, a 
paratrooper of the German Air Force, taken prisoner in Holland in 1942, 
transported first to England and later moved to Canada, where he has since 
been kept. On December 21, 1943, he secreted himself in a prisoner of war 
mail bag at the prisoner of war camp where he was detained. The mail bag 
was in due course placed with others in the mail car on a Canadian National 
train, its weight exciting comment but apparently not the suspicion of the 
railway mail clerks who moved it from place to place. The mail bag was finally 
placed close to a radiator in the mail car. Finally the accused, oppressed by 
heat and lack of fresh air, released himself from the bag by cutting it open 



264 

with a knife which he had in his possession. After getting out of the bag in 
which he had concealed himself, he cut open another mail bag in the car and 
removed some parcels from it. He broke these parcels open and discovered a 
quantity of cigarettes, some gum, and a bottle of perfume. He smoked some of 
the cigarettes and used some of the gum and perfume. He was later 
apprehended and subsequently charged with theft from the mails. The 
charge was dismissed by the Magistrate before whom he came, and the 
Crown now appeals to this Court. 

Counsel for the Crown necessarily accepts and relies upon the facts found, 
but submits that the accused as a prisoner of war was, under the, cir- 
cumstances, subject to the complete restraint of the criminal law and that he 
should have been convicted of the offence charged. 

Counsel for the respondent submits that what the accused did were in fact 
acts which were part of or incidental to his escape and that such acts by a 
prisoner of war, that is those forming part of or incidental to his escape from 
the detaining Power, should be deemed to be acts of war rather than criminal 
offences. 

There is little definite authority in the decided cases. 

Counsel for the respondent draws attention to a question put by Lord 
Campbell, Chief Justice, in Reg. v. Sattler, Dears. & Bell 525 at p. 543: 

"A prisoner at war committing murder would be triable; but the question 
is, what constitutes murder? If a prisoner at war who had not given his parole 
killed a sentinel in endeavouring to effect his escape, would that be murder?" 

In discussing exceptions to the general rule that the criminal law applies to 
all persons who are within certain local limits, Mr. Justice Stephen in his work 
"The History of the Criminal Law of England", vol. 2, p. 8, after examining 
the few authorities then existing which referred to alien enemies and 
prisoners of war, expresses the view: 

"It is difficult to extract any definite proposition from these authorities as 
to the cases in which foreigners are liable to English criminal law, when they 
are brought, against their will, into places where that law is, as a general rule, 
administered. None of them, however, is inconsistent with, and each of them 
more or less distinctly illustrates, the proposition that protection and 
allegiance are co-extensive, and that obedience to the law is not exacted in 
cases in which it is avowedly administered, not for the common benefit of the 
members of a community of which the alleged offender is for the time being a 
member, but for the benefit of a community of which he is an avowed and open 
enemy." 

It is material to consider the provisions of the convention relative to the 
treatment of prisoners of war concluded at Geneva on July 27, 1929. His 
Majesty the King and the President of the German Reich were parties to this 
convention and it was signed by plenipotentiaries for Canada. 

Section 5, c. 3, deals with penal sanctions with regard to prisoners of war. 
Without attempting to set out at length all the provisions of this chapter, the 
following may be observed: 



265 

Article 45 provides: 

"Prisoners of war shall be subject to the laws, regulations and orders in 
force in the armed forces of the detaining Power. 

"Any act of insubordination shall render them liable to the measures 
prescribed by such laws, regulations, and orders, except as otherwise 
provided in this Chapter." 

Article 46 provides: 

"Prisoners of war shall not be subjected by the military authorities or the 
tribunals of the detaining Power to penalites other than those which are 
prescribed for similar acts by members of the national forces." 

And further: "prisoners of war, undergoing disciplinary punishment shall 
not be subjected to treatment less favourable than that prescribed as regards 
the same punishment, for similar ranks in the armed forces of the detaining 
Power." 

"Article 47 provides, inter alia: 

"The judicial proceedings against a prisoner of war shall be conducted as 
quickly as circumstances will allow." This article later refers to the sentence 
"whether disciplinary or judicial, provided such deduction is permitted in 
case of members of the national forces." 

Article 48 provides in part: 

"After undergoing the judicial or disciplinary punishment which has been 
inflicted on them, prisoners of war shall not be treated differently from other 
prisoners." 

Article 50 provides in part: 

"Escaped prisoners of war who are re-captured before they have been able 
to rejoin their own armed forces or to leave the territory occupied by the 
armed forces which captured them shall be liable only to disciplinary 
punishment." 

Article 51 provides in part: 

"Attempted escape, even if it is not a first offence, shall not be considered 
as an aggravation of the offence in the event of the prisoner of war being 
brought before the courts for crimes or offences against persons or property 
committed in the course of such attempt." 

Article 52 provides: 

"Belligerents shall ensure that the competent authorities exercise the 
greatest leniency in considering the question whether an offence committed 
by a prisoner of war should be punished by disciplinary or by judicial 
measures. 

"This provision shall be observed in particular in appraising facts in 
connexion with escape or attempted escape. 

"A prisoner shall not be punished more than once for the same act or on the 
same charge." 

Part 2 makes provisions respecting disciplinary punishments, and Part 3 is 
headed "Judicial Proceedings." This provides rules and requirements re- 
lating to judicial hearings of charges against prisoners of war, for notice being 
given of the name and rank of the prisoner; the place of detention, and 



266 

statement of the charges to the protecting power; that no prisoner should be 
sentenced without an opportunity to defend himself; that no prisoner should 
be compelled to admit his guilt, and he has a right to a qualified advocate of his 
own choice, and if necessary, to a competent interpreter, and various other 
provisions aimed at safeguarding the rights of a prisoner of war in judicial 
proceedings. 

It is quite apparent that the convention anticipates judicial proceedings 
against prisoners of war, as well as disciplinary proceedings by military 
authorities. 

In view of the provisions of Art. 45, it is of interest to keep in mind to what 
extent our own armed forces which in this case are those of the detaining 
Power, are subject to proceedings in the Courts. The question may be 
answered in the words of Sir Lyman P. Duff, Chief Justice of Canada, in 
Reference re Exemption of U.S. Forces from Canadian Criminal Law, 
[1943], 4 D.L.R. 11 at p. 14, S.C.R. 483 at p. 490, 80 Can. C.C. 161 at p. 165: 
"My view can be stated very briefly. It is, I have no doubt, a fundamental 
constitutional principle, which is the law in all the Provinces of Canada, that 
the soldiers of the army of all ranks are not, by reason of their military 
character, exempt from the criminal jurisdiction of the civil (that is to say, 
non-military) courts of this country." 

In amplification of this view, the Chief Justice continues, later (pp. 15-6 
D.L.R., pp. 490-1 S.C.R., pp. 165-7 Can. C.C): 

"That is a well settled principle which has always been jealously guarded 
and maintained by the British people as one of the essential foundations of 
their constitutional liberties. I quote two passages on the subject — the first 
is from Dicey 's Law of the Constitution;, and the second is from Dr. 
Goodhart, the distinguished lawyer who is the successor of Maine and Pollock 
in the chair of jurisprudence at Oxford University and is the editor of the Law 
Quarterly Review; this passage is taken from an article written by Dr. 
Goodhart for the American Bar Association Journal for the information of 
American lawyers. At pp. 300-1 of Dicey it is stated: 

" 'A soldier's position as a citizen. — The fixed doctrine of English law is 
that a soldier, though a member of a standing army, is in England subject to 
all the duties and liabilities of an ordinary citizen. "Nothing in this Act 
contained" (so runs the first Mutiny Act) "shall extend or be construed to 
exempt any officer or soldier whatsoever from the ordinary process of law." 
These words contain the clue to all our legislation with regard to the standing 
army whilst employed in the United Kingdom. A soldier by his contract of 
enlistment undertakes many obligations in addition to the duties incumbent 
upon a civilian. But he does not escape from any of the duties of an ordinary 
British subject. 

" 'The results of this principle are traceable throughout the Mutiny Acts. 

Acts. 

" 4 A soldier is subject to the same criminal liability as a civilian. He may 

when in the British dominions be put on trial before any competent "civil" (i.e. 

non-military) court for any offence for which he would be triable if he were not 



267 

subject to military law, and there are certain offences, such as murder, for 
which he must in general be tried by a civil tribunal. Thus, if a soldier murders 
a companion or robs a traveller whilst quartered in England or in Van 
Dieman's Land, his military character will not save him from standing in the 
dock on the charge of murder or theft.' 

"Referring to the legislation introduced in 1942 and passed by the 
Parliament of the United Kingdom, Dr. Goodhart says (American Bar 
Association Journal, vol. 28, p. 763): 

" The important constitutional principle which was involved is one of the 
essential ones on which the English constitution is based. It is described by 
Dicey as "the fixed doctrine of English law that a soldier, though a member of 
a standing army, is in England subject to all the duties and liabilities of an 
ordinary citizen." It is part — and perhaps the most important part — of the 
"rule of law" which is the distinctive feature of the British system. "It 
becomes, too, more and more apparent that the means by which the courts 
have maintained the law of the constitution have been the strict insistence 
upon the two principles, first of 'equality before the law,' which negatives 
exemption from the liabilities of ordinary citizens or from the jurisdiction of 
the ordinary courts, and, secondly, of 'personal responsibility of wrongdoers,' 
which excludes the notion that any breach of law on the part of a subordinate 
can be justified by the orders of his superiors." This means that the British 
soldier is subject to the jurisdiction of the ordinary courts, and is responsible 
to them for any breaches of the law which he may commit. So long as this 
principle is maintained, it will be impossible for anyone to establish a military 
dictatorship in Great Britain.' " 

There is nothing in the provisions of the Convention to exclude the 
application of the Criminal Code here. 

Counsel for the appellant urges that prisoners of war are subject to the 
complete restraint of the criminal law whether or not the acts in question are 
a part of or incidental to escape from the detaining Power. It is unnecessary 
and undesirable to express here an opinion as to what view should be taken 
under other circumstances, for instance, if a prisoner of war were accused of 
assaulting a military guard who endeavoured to prevent his escape. 

In this case the Magistrate has found as a fact: "With regard to the 
perfume, I have given him the benefit of the doubt and say that he used it in 
order to assist his escape by concealing the extreme odour of perspiration. 
With regard to the cigarettes and gum I am unable to see that they would 
assist his escape materially and I feel that he took them for his own comfort." 

I see no reason to disagree with the finding of fact that the taking of the 
cigarettes and gum from the mail bags was for personal comfort of the 
accused and not a part of or incidental to his escape. Under the circumstances 
he is liable to the restraint of the criminal law and to proceedings in the Courts 
in the same way as a member of the armed forces of this country. 

The appeal must be allowed and a conviction recorded. 

As to sentence — the provisions of the Code with respect to such a charge 
have been recently amended so that now the minimum sentence is in the 



268 

discretion of the Court. Counsel for the Crown suggests only a moderate 
sentence. Under the circumstances a sentence of two months should be 
imposed. 

Appeal allowed: accused convicted. 



269 
DOCUMENT NO. 67 

REX v. KAEHLER and STOLSKI 
(Supreme Court, Appellate Division, Alberta, Canada, 

26 March 1945) 

SOURCES 
[1945] 3D.L.R. 272 
[1945] 1W.W.R. 566 
83 Can. C.C. 353 

NOTE 
This is another case involving the theft of a motor vehicle by prisoners of 
war, allegedly to facilitate their escape, in which the Canadian appellate court 
found no legal justification for the view that a prisoner of war was less 
criminally responsible for an offense committed to facilitate escape from 
custody than for an offense unconnected with an attempt to escape. The 
decision was, as in the case of Rex v. Shindler et al (DOCUMENT NO. 62), 
largely based on a strict construction of the language contained in Article 
51(1) of the 1929 Geneva Prisoner-of-War Convention (DOCUMENT NO. 
49). It is contrary to the decision in Rex v. Krebs (DOCUMENT NO. 61) and, 
at least inferentially, to the decision in Rex v. Brosig (DOCUMENT NO. 66). 
A rule contrary to that expressed in the present case has been incorporated 
into Article 93(2) of the 1949 Geneva Prisoner-of-War Convention 
(DOCUMENT NO. 108) so that a prisoner of war may now be subjected only 
to disciplinary punishment for offenses against property committed in 
furtherance of an attempted escape and not for self-enrichment. 

EXTRACTS 

The judgment of the Court was delivered by 

Harvey C.J. A.: — The defendants, appellants, are German prisoners of 
war who were convicted by Police Magistrate Sinclair of Calgary (1) of 
breaking and entering a warehouse with intent to commit an indictable 
offence therein, and (2) of stealing a motor car. They have appealed from their 
convictions. 

The breaking and entering occurred on August 4, 1944, and the theft of the 
motor car on the 8th day of the same month. The informations charging the 
two offences were both sworn on August 9th by different employees of the 
owner of the warehouse and motor car. 

The appellants were two members of a group of prisoners of war working 
under the supervision of an official of the Labour Department on the farm of 
the Western Irrigation District at Strathmore a short distance out of 
Calgary. Stolski was cook for the group and did not go out to the fields as 
Kaehler did. Stolski was supposed to be supplied with the necessary utensils 
required for his cooking operations by the District and Gunn its employee, 
says he was willing to supply anything that was needed. Any utensils 



270 

available were in the warehouse in question. 

On the trial the appellants were represented by counsel instructed by the 
Swiss Government, as the protecting Power under the terms of the Geneva 
Convention to which reference will be made later. As regards the first 
mentioned conviction counsel claimed no immunity for them as prisoners of 
war under the said Convention or otherwise. 

The breaking and entering was established beyond doubt and indeed was 
admitted by both appellants in written statements and in the evidence they 
gave on the trial, but they denied that they intended to commit any indictable 
offence. 

At the close of the argument on the appeal we allowed the appeal and 
quashed the conviction being all of opinion that the evidence fell short of being 
sufficient to justify the inference of the intent to steal. Both appellants had 
been in the warehouse earlier and had an opportunity of seeing what it 
contained and it did not contain anything that would appear to be of any value 
or attraction to them that they could want to steal. 

We reserved judgment on the appeal from conviction of stealing a motor 
car. 

From the time the men left their work until the next morning they were 
practically free as far as their movements were concerned. 

On the morning of August 8th it was discovered that a motor truck 
belonging to the district had disappeared during the night preceding and 
when it came time for the appellants to go to work it was found that they also 
had disappeared. 

It cannot be said that the Magistrate was not justified in finding the 
appellants guilty of the theft of the motor truck. There was evidence of 
possession that called for an explanation but none was given. There was in 
addition quite a strong chain of circumstantial evidence apart from the 
presumption arising from recent possession. The mere fact that they and the 
car were at Strathmore the evening before and that the next morning they 
and the car were at Vulcan some 60 miles away and that they were with the 
car and that attempts were made to obtain gas and that one of them had the 
gas ration book in his possession furnish a chain of strong circumstantial 
evidence. 

Counsel for the appellants however, contends that even if guilty of stealing 
the truck they are not liable to punishment because as prisoners of war they 
are entitled to escape and any act dojje to facilitate escape is justified and does 
not impose criminal liability. This is a rather startling proposition because a 
most effective means of securing their freedom would be by the killing of their 
guard, and anyone else who attempted to stop them. Their counsel however 
goes that far and claims immunity even for such an act. 

It is somewhat singular that with the thousands of prisoners of war that 
have been confined in England and Canada as well as the United States 
during the years of the present war and also during the war of 1914 to 1918 
during which there have been thousands of attempts to escape no authority in 
support of this proposition can apparently be found beyond that of two Police 



271 

Magistrates in Ontario. The only decisions on the point to which counsel has 
been able to refer are the two mentioned, supporting his contention, and two 
in this Province, including the one now under consideration to the opposite 

effect. 

Only one of the two Ontario cases has been reported, R. v. Krebs decided in 
October 1943, and reported in [1943] 4 D.L.R. 553, 80 Can. C.C. 279. The 
other Ontario case was in February 1944, R. v. Brosig which is not reported. 
The Attorney-General, however, appealed from the acquittal in the latter 
case and at the time of the argument in this case the decision on the appeal had 
not been given [See now [1945], 2 D.L.F. 232, O.W.N. 225, 83 Can. C.C 199]. 
Judgment has now been given but unfortunately it does not settle the 
question presently under consideration. 

In the Brosig case the prisoner of war had concealed himself in a post office 
mail bag and had subsequently cut his way out and stolen some articles from 
another mail bag. 

The Magistrate found that some of the articles stolen could not be deemed 
to be necessary or useful in aiding his escape. Such being the case, the Court 
contented itself with restricting its decision to the facts of the case. Mr. 
Justice Gillanders, who wrote the main reasons, stated [1945] 2 D.L.R. at p. 
239, 83 Can. C.C. at p. 207): 

"Counsel for the appellant urges that prisoners of war are subject to the 
complete restraint of the criminal law whether or not the acts in question are 
a part of or incidental to escape from the detaining Power. It is unnecessary 
and undesirable to express here an opinion as to what view should be taken 
under other circumstances, for instance, if a prisoner of war were accused of 
assaulting a military guard who endeavoured to prevent his escape." 

And the Chief Justice of Ontario who also wrote a short judgment said (p. 
233 D.L.R., p. 201 Can. C.C): "The 'looting' of the mail bag was not an act 
necessary for the escape of the prisoner of war." 

I think, however, we are entitled to accept the decision as authoritative for 
the propositions that the Geneva Convention of 1929 is a part of the law of 
Canada, and that under it a prisoner of war has no immunity from the 
consequences of his committing an act which if committed by a member of one 
of our own armed forces would be punishable as a crime. Indeed, Order in 
Council P.C. 4121 [Proclamations & Orders in Council, vol. 1, p. 218] 
hereafter referred to specifically so provides. But since no Canadian soldier 
could have occasion in Canada to attempt to escape from custody as a prisoner 
of war he could never commit an act in aid of such an attempt. 

The Court based its conclusion on the terms of the Geneva Convention as 
relating to prisoners of war and set out many of the Articles. It is unnecessary 
to repeat them, but it suffices to point out that no distinction seems to be made 
in any of them which would justify the conclusion that offences committed in 
aid of escape occupy a preferred position. Indeed, Article 51 seems to indicate 
the exact opposite. It is as follows: 

"51. Attempted escape, even if it is not a first offence, shall not be 
considered as an aggravation of the offence in the event of the prisoners of 



272 

war being brought before the courts for crimes or offences against persons or 
property committed in the course of such attempt." 

That clearly envisages offences punishable by the Courts when committed 
in the course of an attempt to escape. 

Article 52, which also deals with the subject of escape, provides: 

"52. Belligerents shall ensure that the competent authorities exercise the 
greatest leniency in considering the question whether" an offence committed 
by a prisoner of war should be punished by disciplinary or by judicial 
measures. 

"This provision shall be observed in particular in appraising facts in 
connexion with escape or attempted escape." 

On December 13, 1939 shortly after the outbreak of the present war an 
Order in Council (P.C. 4121) was passed under the authority of the War 
Measures Act, R.S.C. 1927, C. 206 making "Regulations governing the 
maintenance of discipline among and treatment of Prisoners of War". These 
regulations follow very closely the Articles of the Geneva Convention, some 
of them being in the exact words. Regulation 7 provides that: 

"7. A prisoner of War shall be subject to the law relating to the Naval 
Service, the Militia or The Air Force of Canada, as the case may be, in like 
manner as if he were a member of the naval Service, the Militia or the Air 
Force except that a Prisoner of War, Class 1, holding Naval, Militia or Air 
Force rank in the Service of his own country may not be deprived of such rank 
by Canadian Tribunal or Officials." 

Regulation 53 provides that: 

"53. The Commandant of any camp or other place set apart for the 
internment of Prisoners of War, or the officer commanding a body of troops 
having custody of Prisoners of War in field or upon the line of march, upon 
receiving information of a charge made against a Prisoner of War under his 
custody of having committed an offence, shall dismiss the charge if he in his 
discretion thinks it ought not to be proceeded with, but where he thinks the 
charge ought to be proceeded with, he may forthwith submit a report to the 
District Officer commanding the Military District in which the Camp is 
situated, who shall give such orders as may be necessary, or he may deal with 
the case summarily." 

Then 63 is as follows: 

"63. When the District Officer Commanding a Military District to whom a 
case has been submitted under paragraph 53 of these regulations considers 
that the charge cannot properly be disposed of in any other manner, he shall 
take steps to bring the accused to trial before a military court, or may, in the 
case of a civil offence, communicate with civil powers in order that the 
accused may be dealt with by a civil court of criminal jurisdiction." 

It is under the final portion of this Article that this case came before the 
Civil Courts. If attention had been given to the fact that for the theft of a 
motor car a Judge or Magistrate in a Civil Court is not permitted to exercise 
an unfettered discretion in imposing such a sentence as he thinks the case 
deserves, but is compelled to impose a term of imprisonment of one year at 



273 

the least, it might not have been thought desirable to have the case dealt with 
in a Civil Court. One can hardly think that any Magistrate or Judge would 
have deemed this offence, under its special circumstances, deserving of more 
than a very short term of imprisonment. 

It is contended that the prisoner of war has a right, even a duty to 
endeavour to escape. If he has any such duty it is to his own country and 
armed forces, not to Canada, and even if he had the right there is no rule 
applicable to our armed forces and therefore to prisoners of war, that a 
legitimate end justifies illegitimate means. But it is an error to say that he has 
the right for Art. 50 provides: 

"50. Escaped prisoners of war who are recaptured before they have been 
able to rejoin their own armed forces or to leave the territory occupied by the 
armed forces which captured them shall be liable only to disciplinary 
punishment." 

"Prisoners who, after succeeding in rejoining their armed forces or in 
leaving the territory occupied by the armed forces which captured them, are 
again taken prisoner shall not be liable to any punishment for their previous 
escape." 

It is clear from this Article that it is a punishable offence though as the 
Article and the two subsequent ones show it is not considered a very heinous 
offence. 

In vol. 32 of the 12th ed. of the Encyclopaedia Britannica there is a quite 
lengthy article on prisoners of war commencing at p. 150 of which the author 
is Sir Reginald Brodie Duke Acland, K.C., who was a Judge Advocate of the 
Fleet and a member of a Government Committee on the treatment by the 
enemy of prisoners of war. This was before the Geneva Convention of 1929 
but after the Hague Conventions of 1899 and 1907 and after the World War of 
1914 to 1918. 

On pp. 154-5 it is stated: "In one respect, viz. the punishments for 
attempted escape, the German military law was less severe than the British, 
the greater severity of the latter having apparently arisen from a mis- 
understanding of the expression 'peines disciplinaires' in the second 
paragraph of the 8th Article of the Hague Convention. This seems to have 
been understood on the Continent as a punishment which could be awarded 
summarily: that is, arrest, open, medium or close, for a period not exceeding 
six weeks. In Great Britain the punishment was limited to 12 months' 
imprisonment; in Germany it was far less for the simple offence, though it was 
frequently added to by the addition of charges for damaging Government 
property, and the like. The matter came under discussion between the 
British and German Delegates at The Hague in 1917 and 1918, and an 
agreement was arrived at by which the punishment for a simple attempt to 
escape was to be limited to fourteen days, or if accompanied with offences 
relating to the appropriation, possession of or injury to property to two 
months' military confinement." 

A consideration of Arts. 50 and 51 discloses that under the Geneva 
Convention the attempt to escape is an offence quite distinct from offences 



274 

committed in the endeavour to escape, but that while the attempt to escape if 
unsuccessful is punishable, it is not to be considered an aggravation of those 
other offences. Indeed Art. 53 suggests that it should be taken as an 
amelioration of such other offences but not as an excuse or justification for 
them. 

In neither the Krebs nor the Brosig case did the Magistrate consider the 
Geneva Convention. 

In the Brosig case the Magistrate states: "It was practically agreed 
between counsel that the case ofR. v. Krebs is a correct statement of the law" 
and he did not consider the law further. In the Krebs case ([1943] 4 D.L.R. 
553, 80 Can. C.C. 279) the Magistrate made a careful and thorough exam- 
ination of the cases and text-books that had a bearing on the subject and 
concluded (p. 557 D.L.R., pp. 283-4 Can. C.C): 

"In my opinion — although as I have said I can find no authority directly in 
point — the accused is not punishable at common law for an attempt to 
escape. He is not punishable at common law for doing anything reasonably 
calculated to assist in that escape, and in my opinion the same holds for 
anything done in an endeavour to preserve his liberty once gained. 

"This accused owes no allegiance to the Crown. He is an open and avowed 
enemy of the Crown, a man taken in war and a man who, if it is not his duty, 
may quite reasonably feel that it is his duty to escape from the domains to 
which he owes allegiance and perform his duty to that state." 

It seems clear that the purpose of the Geneva Convention as relating to 
prisoners of war was to ameliorate their condition, not to impose heavier 
burdens on them, but if before the Geneva Convention they were under no 
obligation to observe the laws of the captor country in an endeavor to escape, 
to impose such an obligation would have the opposite effect. 

As above pointed out Art. 51 while not specifically declaring criminal 
liability for acts committed in the endeavor to escape, clearly recognizes 
criminal liability for offences so committed. That would seem however to be 
irreconcilable with the decision in the Krebs case. It is important therefore to 
consider whether that decision is correct. 

While an attempt to escape, especially a successful attempt to escape is 
looked on with approbation in many armies and countries as regards their 
own forces, particularly Britain and Germany yet it is not so considered by 
the captor countries. Since our criminal law was codified in 1892 there has 
been a section, now s. 186, imposing a penalty of five years' imprisonment on 
anyone assisting a prisoner of war to escape. As far back as 1812 by 52 Geo. 
Ill, c. 156, this was declared to be a felony. The Act recites that: "Whereas 
many Prisoners of War confined and on Parole in different Parts of His 
Majesty's Dominions have of late escaped by the Aid and Assistance of many 
of His Majesty's Subjects and others; and it is necessary to repress such 
Practices and Violations of the Allegiance due to His Majesty and of the Law 
by more effectual Punishment." The last words of the recital suggest that 
there had previously been less effectual punishment, but I find no reference 



275 

to anything earlier than this statute. Notwithstanding the seriousness rec- 
ognized by the statutory law of the escape of a prisoner of war we have 
contracted with the other countries parties to the Geneva Convention to 
restrict the punishment to what is specified in its Articles. Article 51, above 
quoted, exempts comrades of a prisoner of war from this provision of our 
criminal law though not exempting them completely from punishment. 

For the reasons given it appears that there is no justification for the view 
that at common law before the Convention relating to prisoners of war, there 
was any less criminal responsibility for the commission of an offence by a 
prisoner of war in attempting to escape because it was done to assist him in 
escaping, than for any offence unconnected with an attempt to escape and 
that there is, therefore, no justification for making any qualification of the 
general terms imposing criminal liability in the Geneva Convention. 
Moreover, as already stated, the liability to punishment for such offences is 
clearly recognized by Art. 51. 

The appeal must be dismissed. 



276 

DOCUMENT NO. 68 

AGREEMENT BY THE GOVERNMENT OF THE UNITED KINGDOM 
OF GREAT BRITAIN AND NORTHERN IRELAND, THE 
GOVERNMENT OF THE UNITED STATES OF AMERICA, THE PRO- 
VISIONAL GOVERNMENT OF THE FRENCH REPUBLIC AND THE 
GOVERNMENT OF THE UNION OF SOVIET SOCIALIST 
REPUBLICS FOR THE PROSECUTION AND PUNISHMENT OF THE 
MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS 
(London, 8 August 1945) 

SOURCES 
82 UNTS 280 
59 Stat. 1544 
3 Bevans 1238 
39AJILSupp. 257 
145BFSP872 

NOTE 
This Agreement, with the annexed Charter of the International Military 
Tribunal which was to try the major German personalities charged with the 
commission of war crimes having no particular geographical location, was 
negotiated over the period of 26 June 1945 to 8 August 1945 by repre- 
sentatives of the Governments of France, the Soviet Union, the United 
Kingdom, and the United States. It was signed by them on 8 August 1945 and 
was subsequently adhered to by 19 other Governments. It was the legal basis 
upon which the trial of the major Nazi war criminals was conducted at 
Nuremberg during 1945 and 1946 (DOCUMENT NO. 85) and served as a 
major source for the Charter of the International Military Tribunal for the 
Far East which was promulgated by General MacArthur in Tokyo on 19 
January 1946 (DOCUMENT NO. 75) and which conducted the trial of the 
major Japanese war criminals (DOCUMENT NO. 101). 

TEXT 
AGREEMENT: 

Whereas the United Nations have from time to time made declarations of 
their intention that War Criminals shall be brought to justice; 

And whereas the Moscow Declaration of the 30th October, 1943, on 
German atrocities in Occupied Europe stated that those German officers and 
men and members of the Nazi Party who have been responsible for or have 
taken a consenting part in atrocities and crimes will be sent back to the 
countries in which their abominable deeds were done in order that they may 
be judged and punished according to the laws of these liberated countries and 
of the free Governments that will be created therein; 

And whereas this Declaration was stated to be without prejudice to the 
case of major criminals whose offences have no particular geographical 



277 

location and who will be punished by the joint decision of the Governments of 
the Allies; 

Now therefore the Government of the United Kingdom of Great Britain 
and Northern Ireland, the Government of the United States of America, the 
Provisional Government of the French Republic and the Government of the 
Union of Soviet Socialist Republics (hereinafter called "the Signatories") 
acting in the interests of all the United Nations and by their representatives 
duly authorised thereto have concluded this Agreement. 

Article 1 

There shall be established after consultation with the Control Council for 
Germany an International Military Tribunal for the trial of war criminals 
whose offences have no particular geographical location whether they be 
accused individually or in their capacity as members of organisations or 
groups or in both capacities. 

Article 2 

The constitution, jurisdiction and functions of the International Military 
Tribunal shall be those set out in the Charter annexed to this agreement, 
which Charter shall form an integral part of this Agreement. 

Article S 

Each of the Signatories shall take the necessary steps to make available for 
the investigation of the charges and trial the major war criminals detained by 
them who are to be tried by the International Military Tribunal. The 
Signatories shall also use their best endeavours to make available for 
investigation of the charges against and the trial before the International 
Military Tribunal such of the major war criminals as are not in the territories 
of any of the Signatories. 

Article U 

Nothing in this Agreement shall prejudice the provisions established by 
the Moscow Declaration concerning the return of war criminals to the 
countries where they committed their crimes. 

Article 5 

Any Government of the United Nations may adhere to this Agreement by 
notice given through the diplomatic channel to the Government of the United 
Kingdom, who shall inform the other signatory and adhering Governments of 
each such adherence. 

Article 6 

Nothing in this Agreement shall prejudice the jurisdiction or the powers of 
any national or occupation court established or to be established in any Allied 
territory or in Germany for the trial of war criminals. 

Article 7 

This Agreement shall come into force on the day of signature and shall 
remain in force for the period of one year and shall continue thereafter, 
subject to the right of any Signatory to give, through the diplomatic channel, 
one month's notice of intention to terminate it. Such termination shall not 
prejudice any proceedings already taken or any findings already made in 
pursuance of this Agreement. 



278 



CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL 
I. — Constitution of the International Military Tribunal 

Article 1 
In pursuance of the Agreement signed on the 8th August, 1945, by the 
Government of the United Kingdom of Great Britain and Northern Ireland, 
the Government of the United States of America, the Provisional 
Government of the French Republic and the Government of the Union [of] 
Soviet Socialist Republics, there shall be established an International 
Military Tribunal (hereinafter called "the Tribunal") for the just and prompt 
trial and punishment of the major war criminals of the European Axis. 

Article 2 
The Tribunal shall consist of four members, each with an alternate. One 
member and one alternate shall be appointed by each of the Signatories. The 
alternates shall, so far as they are able, be present at all sessions of the 
Tribunal. In case of illness of any member of the Tribunal or his incapacity for 
some other reason to fulfil his functions, his alternate shall take his place. 

Article S 
Neither the Tribunal, its members nor their alternates can be challenged 
by the prosecution, or by the Defendants or their Counsel. Each Signatory 
may replace its members of the Tribunal or his alternate for reasons of health 
or for other good reasons, except that no replacement may take place during a 
trial, other than by an alternate. 

Article 4 

(a) The presence of all four members of the Tribunal or the alternate for 
any absent member shall be necessary to constitute the quorum. 

(b) The members of the Tribunal shall, before any trial begins, agree 
among themselves upon the selection from their number of a President, and 
the President shall hold office during that trial, or as may otherwise be agreed 
by a vote of not less than three members. The principle of rotation of 
presidency for successive trials is agreed. If, however, a session of the 
Tribunal takes place on the territory of one of the four Signatories, the 
representative of that Signatory on the Tribunal shall preside. 

(c) Save as aforesaid the Tribunal shall take decisions by a majority vote 
and in case the votes are evenly divided, the vote of the President shall be 
decisive: provided always that convictions and sentences shall only be 
imposed by affirmative votes of at least three members of the Tribunal. 

Article 5 
In case of need and depending on the number of the matters to be tried, 
other Tribunals may be set up; and the establishment, functions and 
procedure of each Tribunal shall be identical, and shall be governed by this 
Charter. 

II. — Jurisdiction and General Principles 

Article 6 
The Tribunal established by the Agreement referred to in Article 1 hereof 
for the trial and punishment of the major war criminals of the European Axis 
countries shall have the power to try and punish persons who, acting in the 



279 

interests of the European Axis countries, whether as individuals or as 
members of organisations, committed any of the following crimes. 

The following acts, or any of them, are crimes within the jurisdiction of the 
Tribunal for which there shall be individual responsibility: — 

(a) Crimes against peace: namely, planning, preparation, initiation or 
waging of a war of aggression, or a war in violation of international 
treaties, agreements or assurances, or participation in a common plan 
or conspiracy for the accomplishments of any of the foregoing; 

(b) War crimes: namely, violations of the laws or customs of war. Such 
violations shall include, but not be limited to, murder, ill-treatment or 
deportation to slave labour or for any other purpose of civilian 
population of or in occupied territory, murder or ill-treatment of 
prisoners of war or persons on the seas, killing of hostages, plunder of 
public or private property, wanton destruction of cities, towns or 
villages, or devastation not justified by military necessity; 

(c) Crimes against humanity: namely, murder, extermination, enslave- 
ment, deportation, and other inhumane acts committed against any 
civilian population, before or during the war, or persecution on 
political, racial or religious grounds in execution of or in connection 
with any crime within the jurisdiction of the Tribunal, whether or not 
in violation of the domestic law of the country where perpetrated. 

Leaders, organisers, instigators, and accomplices participating in the 
formulation or execution of a common plan or conspiracy to commit any of the 
foregoing crimes are responsible for all acts performed by any persons in 
execution of such plans. 

Article 7 

The official position of defendants, whether as Heads of State or 
responsible officials in Government Departments, shall not be considered as 
freeing them from responsibility or mitigating punishment. 

Article 8 

The fact that the Defendant acted pursuant to order of his Government or 
of a superior shall not free him from responsibility, but may be considered in 
mitigation of punishment if the Tribunal determines that justice so requires. 

Article 9 

At the trial of any individual member of any group or organisation the 
Tribunal may declare (in connection with any act of which the individual may 
be convicted) that the group or organisation of which the individual was a 
member was a criminal organisation. 

After receipt of the Indictment the Tribunal shall give such notice as it 
thinks fit that the prosecution intends to ask the Tribunal to make such 
declaration and any member of the organisation will be entitled to apply to the 
Tribunal for leave to be heard by the Tribunal upon the question of the 
criminal character of the organisation. The Tribunal shall have power to allow 
or reject the application. If the application is allowed, the Tribunal may direct 
in what manner the applicants shall be represented and heard. 



280 

Article 10 
In cases where a group or organisation is declared criminal by the Tribunal, 
the competent national authority of any Signatory shall have the right to 
bring individuals to trial for membership therein before national, military or 
occupation courts. In any such case the criminal nature of the group or 
organisation is considered proved and shall not be questioned. 

Article 11 
Any person convicted by the Tribunal may be charged before a national, 
military or occupation court, referred to in Article 10 of this Charter, with a 
crime other than of membership in a criminal group or organisation and such 
court may, after convicting him, impose upon him punishment independent of 
and additional to the punishment imposed by the Tribunal for participation in 
the criminal activities of such group or organisation. 

Article 12 
The Tribunal shall have the right to take proceedings against a person 
charged with crimes set out in Article 6 of this Charter in his absence, if he has 
not been found or if the Tribunal, for any reason, finds it necessary, in the 
interests of justice, to conduct the hearing in his absence. 

Article IS 
The Tribunal shall draw up rules for its procedure. These rules shall not be 
inconsistent with the provisions of this Charter. 

III. — Committee for the Investigation and Prosecution of Major 

War Criminals 
Article 1J> 
Each Signatory shall appoint a Chief Prosecutor for the investigation of the 
charges and the prosecution of major war criminals. 

The Chief Prosecutors shall act as a committee for the following purposes: 

(a) to agree upon a plan of the individual work of each of the Chief 
Prosecutors and his staff, 

(b) to settle the final designation of major war criminals to be tried by 
the Tribunal, 

(c) to approve the Indictment and the documents to be submitted 
therewith, 

(d) to lodge the Indictment and the accompanying documents with the 
Tribunal, 

(e) to draw up and recommend to the Tribunal for its approval draft 
rules of procedure, contemplated by Article 13 of this Charter. The 
Tribunal shall have power to accept, with or without amendments, 
or to reject, the rules so recommended. 

The Committee shall act in all the above matters by a majority vote and 
shall appoint a Chairman as may be convenient and in accordance with the 
principle of rotation: provided that if there is an equal division of vote 
concerning the designation of a Defendant to be tried by the Tribunal, or the 
crimes with which he shall be charged, that proposal will be adopted which 
was made by the party which proposed that the particular Defendant be 
tried, or the particular charges be preferred against him. 






281 

Article 15 
The Chief Prosecutors shall individually, and acting in collaboration with 
one another, also undertake the following duties: 

(a) investigation, collection and production before or at the Trial of all 
necessary evidence, 

(b) the preparation of the Indictment for approval by the Committee in 
accordance with paragraph (c) of Article 14 hereof, 

(c) the preliminary examination of all necessary witnesses and of the 
Defendants, 

(d) to act as prosecutor at the Trial, 

(e) to appoint representatives to carry out such duties as may be 
assigned to them, 

(f) to undertake such other matters as may appear necessary to them 
for the purposes of the preparation for and conduct of the Trial. 

It is understood that no witness or Defendant detained by any Signatory 
shall be taken out of the possession of that Signatory without its assent. 

IV. — Fair Trial for Defendants 
Article 16 
In order to ensure fair trial for the Defendants, the following procedure 
shall be followed: 

(a) The Indictment shall include full particulars specifying in detail the 
charges against the Defendants. A copy of the Indictment and of all 
the documents lodged with the Indictment, translated into a 
language which he understands, shall be furnished to the Defendant 
at a reasonable time before the Trial. 

(b) During any preliminary examination or trial of a Defendant he shall 
have the right to give any explanation relevant to the charges made 
against him. 

(c) A preliminary examination of a Defendant and his Trial shall be 
conducted in, or translated into, a language which the Defendant 
understands. 

(d) A Defendant shall have the right to conduct his own defence before 
the Tribunal or to have the assistance of Counsel. 

(e) A Defendant shall have the right through himself or through his 
Counsel to present evidence at the Trial in support of his defence, 
and to cross-examine any witness called by the Prosecution. 

V. — Powers of the Tribunal and Conduct of the Trial 

Article 1 7 
The Tribunal shall have the power: 

(a) to summon witnesses to the Trial and to require their attendance 
and testimony and to put questions to them, 

(b) to interrogate any Defendant, 

(c) to require the production of documents and other evidentiary 
material, 

(d) to administer oaths to witnesses, 

(e ) to appoint officers for the carrying out of any task designated by the 



282 

Tribunal including the power to have evidence taken on com- 
mission. 

Article 18 
The Tribunal shall: 

(a) confine the Trial strictly to an expeditious hearing of the issues 
raised by the charges, 

(b) take strict measures to prevent any action which will cause 
unreasonable delay, and rule out irrelevant issues and statements 
of any kind whatsoever, 

(c) deal summarily with any contumacy, imposing appropriate pun- 
ishment, including exclusion of any Defendant or his Counsel from 
some or all further proceedings, but without prejudice to the 
determination of the charges. 

Article 19 

The Tribunal shall not be bound by technical rules of evidence. It shall 
adopt and apply to the greatest possible extent expeditious and non-technical 
procedure, and shall admit any evidence which it deems to have probative 
value. 

Article 20 

The Tribunal may require to be informed of the nature of any evidence 
before it is offered so that it may rule upon the relevance thereof. 

Article 21 

The Tribunal shall not require proof of facts of common knowledge but shall 
take judicial notice thereof. It shall also take judicial notice of official 
governmental documents and reports of the United Nations, including the 
acts and documents of the committees set up in the various Allied countries 
for the investigation of war crimes, and the records and findings of military or 
other Tribunals of any of the United Nations. 

Article 22 

The permanent seat of the Tribunal shall be in Berlin. The first meetings of 
the members of the Tribunal and of the Chief Prosecutors shall be held at 
Berlin in a place to be designated by the Control Council for Germany. The 
first trial shall be held at Nuremberg, and any subsequent trials shall be held 
at such places as the Tribunal may decide. 

Article 23 

One or more of the Chief Prosecutors may take part in the prosecution at 
each Trial. The function of any Chief Prosecutor may be discharged by him 
personally, or by any person or persons authorised by him. 

The function of Council [sic] for a Defendant may be discharged at the 
Defendant's request by any Counsel professionally qualified to conduct cases 
before the Courts of his own country, or by any other person who may be 
specially authorised thereto by the Tribunal. 

Article 2U 

The proceedings at the Trial shall take the following course: 

(a) The Indictment shall be read in court. 

(b) The Tribunal shall ask each Defendant whether he pleads "guilty" 



283 

or "not guilty". 

(c) The Prosecution shall make an opening statement. 

(d) The Tribunal shall ask the Prosecution and the Defence what 
evidence (if any) they wish to submit to the Tribunal, and the 
Tribunal shall rule upon the admissibility of any such evidence. 

(e) The witnesses for the Prosecution shall be examined and after that 
the witnesses for the Defence. Thereafter such rebutting evidence 
as may be held by the Tribunal to be admissible shall be called by 
either the Prosecution or the Defence. 

(f) The Tribunal may put any question to any witness and to any 
Defendant, at any time. 

(g) The Prosecution and the Defence shall interrogate and may cross- 
examine any witnesses and any Defendant who gives testimony. 

(h) Defence shall address the court. 
(i) The Prosecution shall address the court. 
(j) Each Defendant may make a statement to the Tribunal. 
(k) The Tribunal shall deliver judgment and pronounce sentence. 

Article 25 
All official documents shall be produced, and all court proceedings 
conducted, in English, French and Russian, and in the language of the 
Defendant. So much of the record and of the proceedings may also be 
translated into the language of any country in which the Tribunal is sitting, as 
the Tribunal considers desirable in the interests of justice and public opinion. 

VI. — Judgment and Sentence 
Article 26 
The judgment of the Tribunal as to the guilt or the innocence of any 
Defendant shall give the reasons on which it is based, and shall be final and not 
subject to review. 

Article 27 
The Tribunal shall have the right to impose upon a Defendant, on 
conviction, death or such other punishment as shall be determined by it to be 
just. 

Article 28 
In addition to any punishment imposed by it, the Tribunal shall have the 
right to deprive the convicted person of any stolen property and order its 
delivery to the Control Council for Germany. 

Article 29 
In case of guilt, sentences shall be carried out in accordance with the orders 
of the Control Council for Germany, which may at any time reduce or 
otherwise alter the sentences, but may not increase the severity thereof. If 
the Control Council for Germany, after any defendant has been convicted and 
sentenced, discovers fresh evidence which, in its opinion, would found a fresh 
charge against him. the Council shall report accordingly to the Committee 
established under Article 14 hereof for such action as they may consider 
proper, having regard to the interests of justice. 



284 

VII. — Expenses 
Article SO 
The expenses of the Tribunal and of the Trials shall be charged by the 
Signatories against the funds allotted for maintenance of the Control Council 
for Germany. 



285 

DOCUMENT NO. 69 

TRIAL OF GENERAL ANTON DOSTLER 
(U.S. MILITARY COMMISSION, Rome, 8-12 October 1945) 

SOURCES 

1 LRTWC 22 

13 Ann. Dig. 280 

NOTE 
The accused Dostler was charged with ordering the summary execution of 
15 American commandos who had been captured after being landed behind 
the German lines in Italy while on a mission to destroy a railroad tunnel on the 
main line between La Spezia and Genoa. The defense of superior orders was 
based upon the so-called "Commando Order" which had been issued by Hitler 
personally on 18 October 1942 and pursuant to which quarter was to be denied 
enemy commandos and any who were captured were to be handed over to the 
SD, the Nazi intelligence agency for the security police. (See also 
DOCUMENT NO. 83, DOCUMENT NO. 100, and DOCUMENT NO. 104.) 
Note that here the accused went even beyond the requirements of Hitler's 
order as he did not turn his prisoners of war over to the SD, he himself 
ordered their execution without trial. 

EXTRACTS 

2. THE CHARGE AND SPECIFICATION 

Anton Dostler was charged with violations of the laws of war in that, as 
commander of the 75th German Army Corps, he, on or about 24th March, 
1944, in the vicinity of La Spezia, Italy, ordered to be shot summarily a group 
of United States Army personnel consisting of two officers and 13 enlisted 
men, who had then recently been captured by forces under General Dostler, 
which order was carried into execution on or about 26th March, 1944, 
resulting in the death of the said 15 members of the United States Army. 

4. THE CASE FOR THE PROSECUTION 

The Prosecution claimed, by virtue of the witnesses and evidence 
produced, to be able to establish the following facts: — 

On the night of 22nd March, 1944, two officers and 13 men of a special 
reconnaissance battalion disembarked from some United States Navy boats 
and landed on the Italian coast about 100 kilometres north of La Spezia. The 
front at the time was at Cassino with a further front at the Anzio beach head. 
The place of disembarkation was therefore 250 miles behind the then 
established front. The 15 members of the United States Army were on a bona 
fide military mission, which was to demolish the railroad tunnel on the 
mainline between La Spezia and Genoa. On the morning of 24th march, 1944, 
the entire group was captured by a party consisting of Italian Fascist soldiers 
and a group of members of the German army. They were brought to La Spezia 
where they were confined near the headquarters of the 135th Fortress 



286 

Brigade. The 135th Fortress Brigade was, at that time, commanded by a 
German Colonel, Aimers (who was not before the Military Commission). His 
next higher headquarters was that of the 75th German Army Corps then 
commanded by the accused, Anton Dostler. The next higher headquarters 
was that of the Army Group von Zangen, commanded by the General of the 
Infantry von Zangen, who was called as a witness in the case. The next higher 
command was that of the Heeresgruppe C or Heeresgruppe South West, 
which was at that time under Field Marshal Kesselring. 

The captured American soldiers were interrogated in La Spezia by two 
German Naval Intelligence Officers. In the course of the investigation one of 
the officers of the American party revealed the story of the mission. On 24th 
March a report was made by the 135th Fortress Brigade to the 75th Army 
Corps about the capture. On the next morning (25th March, 1944) a telegram 
was received at the headquarters of the 135th Fortress Brigade signed by the 
accused Dostler, saying in substance "the captured Americans will be shot 
immediately." 

On receiving this cable, the commanding officer of the 135th Fortress 
Brigade and the Naval Officers interrogating the prisoners got in touch with 
the 75th Army Corps headquarters in order to bring about a stay of the 
execution. Late on the afternoon of the 25th March, Colonel Aimers (then 
commanding the brigade) received another telegram from 75th Army Corps 
which said in substance that by 7 o'clock the next morning (26th March) he 
would have reported compliance with the order of execution. 

Colonel Aimers then gave orders for the conduct of the execution, for the 
digging of a grave, etc. During the night from Saturday 25th to Sunday, 26th 
March, two attempts were made by officers of the 135th Fortress Brigade and 
by the Naval Officers to bring about a change in the decision by telephoning to 
the accused Dostler. All these attempts having been unsuccessful, the 15 
Americans were executed on the 26th March, early in the morning. 

They were neither tried, nor given any hearing. 

The argument of the Prosecution was that since the deceased had been 
soldiers of the United States Army, dressed as such and engaged on a genuine 
military mission, they were entitled to be treated as prisoners of war. Their 
execution without trial, therefore, was contrary to the Hague Convention of 
1907 and to a rule of customary International law at least 500 or 600 years old. 

5.THE EVIDENCE 

Witnesses for the Prosecution included a Captain in the United States 
Army who had directed the operation against the tunnel. He stated that the 
fifteen soldiers had been bona fide members of the United States Forces; he 
also bore witness as to the nature of the mission on which they were sent, and 
as to the clothing and equipment which they wore. Witnesses for the 
Prosecution included also an Italian employee of the Todt Organisation and 
two German naval Intelligence Officers who gave further evidence regarding 
the deceased's clothing. One of the last two identified a document before the 
Commission as representing in substance the Fuhrerbefehl to which 
reference was made by the Defence. Three ex-members of the Wehrmacht 



287 

gave evidence of attempts made to induce Dostler to change the order 
regarding the execution, and on the circumstances of the execution. General 
Zangen appeared in the witness box and denied having ordered the execution 
of the prisoners. 

Two depositions and the notes of a preliminary interrogation of General 
Dostler were also allowed as evidence. The first deposition was made by a 
German lieutenant in the hospital, who bore witness to the contents of the 
telegram containing Dostler's orders regarding the immediate execution of 
the prisoners and to the efforts which were made to avert the latter. The 
second deposition was made by a Captain in the United States Army who had 
been present at the exhumation of the bodies of the soldiers. 

The Defence recalled General Zangen, who bore witness to the accused's 
merits as a soldier, and called a second Wehrmacht General, von Saenger, 
who described the oath which officers of the German Army had had to take on 
the accession of Hitler to power. As will be seen, General Dostler himself also 
appeared as a witness under oath. 

Although it was not possible to produce the witnesses primarily needed by 
the Defence (one of them, the commander of the Brigade, had escaped from 
captivity and had not been recaptured, while the others could not be traced in 
the American and British zones), the decisive facts were not controversial, 
namely that the victims had been members of the American Forces, carrying 
out a military mission, that the accused had ordered their shooting without 
trial and that they had been so shot. 

6. THE ARGUMENTS OF THE DEFENSE AND REPLIES MADE BY THE PROSECUTION 
(i) That the Deceased were not entitled to the Benefits of the Geneva Convention 
The Defence claimed that for any person to be accorded the rights of a 
prisoner of war under the Geneva Convention, it was necessary, under 
Article 1 thereof, for that person, inter alia, "to have a fixed distinctive 
emblem recognisable at a distance." The submission of the Defence was that 
the American soldiers had worn no such distinctive emblem, and that their 
mission had been undertaken for the purpose of sabotage, to be accomplished 
by stealth and without engaging the enemy. They were not therefore entitled 
to the privileges of lawful belligerents, though it was admitted that they were 
entitled to a lawful trial even if they were treated as spies, 
(ii) The Plea of Superior Orders 

The accused relied on the defence of superior orders which was based on 
two alleged facts: — 

(a) The Fuhrerbefehl of 18th October, 1942, the text of which is 
provided in the Appendix. The Fuhrerbefehl laid down that if 
members of Allied commando units were encountered by German 
troops they were to be exterminated either in combat or in pursuit. 
If they should fall into the hands of the Wehrmacht through 
different channels they were to be handed over to the Sicher- 
heitsdienst without delay. 

The Defence Counsel submitted that pursuit could go on for 



288 

weeks, and that it was not ordered that the allied troops should 
necessarily be killed on the spot. 

In answer to the arguments of the Prosecution that Dostler had 
exceeded the terms of the Fuhrerbefehl (see later), the Defence 
pointed out that Dostler had received no punishment for his action, 
whereas para. 6 of the order stated that all leaders and officers who 
failed to carry out its instructions would be summoned before the 
tribunal of war. 
(b) Alleged orders received from the Commander of the Army Group, 
General von Zangen, and from the Commander of the 
Heeresgruppe South West, Field Marshal Kesselring. 
Dostler also claimed that he had revoked his first order to shoot the men 
and that he had eventually re-issued it on higher order. 

The Defence tried to establish the fact that in 1933 all officers of the German 
Army had had to take a special oath of obedience to the Fuhrer Adolf Hitler. 
This fact was confirmed both by General von Zangen and Dostler himself in 
the witness box. The Prosecution put a question to General von Saenger 
whether he could cite to the Commission any single case of a general officer in 
the German Army who was executed for disobedience to an order. Von 
Saenger replied that he had heard of two cases, one of which he knew; the 
second was only a rumour. The witness did not know a case in the German 
Army in which a general officer was executed for disobedience to the 
Fuhrerbefehl of 18th October, 1942. 

General von Saenger admitted that the Fuhrer gave out orders which in 
their way interfered with International Law. The officers at the front who 
had to execute these orders were convinced, however, that in those cases 
Hitler would make a statement or by some other means inform the enemy 
governments of his decisions, so that the officers were not responsible for 
crimes committed while carrying out his orders. He also said that during the 
war officers could not resign from the German Army. 

Dostler himself said that under the oath to Hitler he understood that it was 
mandatory upon him to obey all orders received from the Fuhrer or under his 
authority. 

Defence Counsel quoted a statement from Oppenheim-Lauterpacht, 
International Law, 6th edition, volume 2, page 453, to the effect that an act 
otherwise amounting to a war crime might have been executed in obedience 
to orders conceived as a measure of reprisals, and that a Court was bound to 
take into consideration such a circumstance. 

The Defence invoked the text of the Fuhrerbefehl which in its first 
sentence itself refers to the Geneva Convention and represents itself as a 
reprisal order made in view of the alleged illegal methods of warfare 
employed by the Allies. Counsel claimed that retaliation was recognised by 
the Geneva Convention as lawful, that the Fuhrerbefehl stated the basis on 
which it rested and that the accused therefore had a perfect right to believe 
that the order, as a reprisal order, was legitimate. 



289 

The Defence quoted also paragraph 347 of the United States Basic Field 
Manual F.M.27-10 (Rules of Land Warfare), which says that individuals of 
the armed forces will not be punished for war crimes if they are committed 
under the orders or sanction of their government or commanders. 

In so far as the defence was based on the Fuhrerbefehl, the Prosecution 
submitted that, apart from an illegal order being no defence, the shooting of 
the prisoners in the present case had not even been covered by the terms of 
the Fuhrerbefehl, because the latter ordered that Commandos should be 
annihilated in combat or in pursuit, but that if they came into the hands of the 
Wehrmacht, through other channels, they should be handed over without 
delay to the Sicherheitsdienst. The prosecuting Counsel pointed out that the 
deceased had not been killed in combat or in pursuit, and had been executed 
instead of being given up to the Sicherheitsdienst. 

As far as the Defence relied on orders received from Army Group 
headquarters, and headquarters of the Heeresgruppe South West, this 
defence had not been substantiated. As far as the Army Group command was 
concerned, it had not been confirmed by the witness, General von Zangen, 
and as far as a command of the Heeresgruppe South West was in question, it 
was even rebutted by the statement of a witness that some hours after the 
execution a cable had been received from the headquarters of Heeresgruppe 
South West to the effect that the execution of the 15 Americans should not 
take place. 

With regard to the text of the Fuhrerbefehl of 18th October 1942, which 
was used in evidence, the Defence counsel said: "It is a matter of common 
knowledge that this Fuhrerbefehl was kept extremely secret. As a matter of 
fact practically no originals of it have even been found. This does not purport 
to be an original we have; it is a copy on which the signature of whoever signed 
it is illegible. I understand it was secured from the French intelligence and 
they passed it on, and that one copy is the only one they have been able to 
find." 

During his examination, the accused, on being handed a copy of the text of 
the Fuhrerbefehl of October, 1942, said that a document which he had 
received in 1944 through Army Group channels contained substantially 
everything that was in the 1942 text, but with certain additions. He stated 
further that "this copy is not the complete Fuhrerbefehl as it was valid in 
March, 1944. In the order that laid on my desk in March, 1944, it was much 
more in detail . . . The Fuhrerbefehl which was laying in front of me listed the 
various categories of operations which may come under the Fuhrerbefehl. In 
addition there was something said in that Fuhrerbefehl about the 
interrogation of men belonging to sabotage troops and the shooting of these 
men after their interrogation. ... I am not quite clear about the point, 
whether a new Fuhrerbefehl covering the whole matter came out of whether 
only a supplement came out and the former Fuhrerbefehl was still in 
existence. . . The Fuhrerbefehl has as its subject commando operations and 
there was a list of what is to be construed as commando operations. I know 
exactly that a mission to explode something, to blow up something, came 



290 



under the concept of commando troops." 

With regard to the mission of the 15 American soldiers he claimed that, 
after making consultations with staff officers, "as it appeared without doubt 
that the operation came under the Fuhrerbefehl an order was given by me 
and sent out that the men were to be shot." 

General von Saenger said that in the Autumn of 1943 he had been 
acquainted with a Fuhrerbefehl on the same subject which was different in 
contents from that before the Commission. On the other hand, three 
witnesses, namely, one of the German Naval Intelligence Officers, an ex- 
Wehrmacht Adjutant and General von Zangen, could remember no 
amendments to the Fuhrerbefehl of October, 1942. 

7. THE VERDICT 

The Commission found General Dostler guilty. 

8. THE SENTENCE 

General Dostler was sentenced to be shot to death by musketry. The 
sentence was approved and confirmed, and was carried into execution. 



291 

DOCUMENT NO. 70 

TRIAL OF ERICH KILLINGER AND FOUR OTHERS 

(British Military Court, Wuppertal, 

Germany, 3 December 1945) 

SOURCES 
3 LRTWC 67 
13 Ann. Dig. 290 

NOTE 
This is one of the comparatively few reported World War II (1939-1945) 
war crimes trials involving the question of allowable and prohibited methods 
of interrogating prisoners of war in the quest for information of military 
value. It is of particular importance because of the several colloquies between 
counsel and the Court which are given in the "Notes on the Case." 

EXTRACTS 
A. OUTLINE OF THE PROCEEDINGS 

Erich Killinger, Heinz Junge, Otto Boehringer, Heinrich Eberhardt and 
Gustav Bauer-Schlightergroll, former officers of the Luftwaffe, were 
charged with "committing a war crime in that they at or near Oberursel, 
Germany, between 1st November, 1941 and 15th April, 1945, when members 
of the staff of the Luftwaffe Interrogation Centre known as Dulag Luft, in 
violation of the laws and usages of war were together concerned as parties to 
the ill-treatment of British Prisoners of War." All pleaded not guilty. 

The Prosecution claimed that the accused belonged to the German Air 
Force Interrogation Centre at Oberursel, near Frankfurt. This Centre was 
known to the German Air Force authorities as Auswertestelle West, but, 
more widely as Dulag Luft. The function of Dulag Luft was, shortly, to obtain 
information of an operational and vital nature from the captured crews of 
Allied machines. The allegation was that excessive heating of the prisoners 
cells took place at Dulag Luft between the dates laid in the charge for the 
deliberate purpose of obtaining from prisoners of war information of a kind 
which under the Geneva Convention they were not bound to give, and that 
the accused were concerned in that ill-treatment. The Prosecution also 
alleged a "lack of and refusal of required medical attention" and "in some 
cases, blows." At first the Prosecutor also claimed that the methods used 
included prolonged solitary confinement and threats of delivery of the 
prisoner of war to the Gestapo and of shooting by the Gestapo, "on the basis 
that the prisoner of war might, because he did not answer sufficiently fully, be 
a saboteur." After a consultation with one of the Defence Officers, however, 
the Prosecutor withdrew the last two allegations. 

Killinger, Junge and Eberhardt were found guilty and sentenced to 
imprisonment for five, five and three years respectively. The remaining two 
accused were found not guilty. The sentences were confirmed by higher 



292 

military authority. 

B. NOTES ON THE CASE 
1. THE LEGAL BASIS OF THE CHARGE 

The Prosecutor rested his case on the Geneva Prisoners of War Convention 
of 1929, and in particular Arts. 2 and 5. Art 5 reads as follows: 

"Art. 5. Every prisoner of war is required to declare, if he is 
interrogated on the subject, his true names [sic] and rank, or his 
regimental number. If he infringes this rule, he exposes himself to a 
restriction of the privileges accorded to prisoners of his category. 

"No pressure shall be exerted on prisoners to obtain information 
regarding the situation of their armed forces or their country. Prisoners 
who refuse to reply may not be threatened, insulted, or exposed to 
unpleasantness or disadvantages of any kind whatsoever. 

"If, by reason of his physical or mental condition, a prisoner is 
incapable of stating his identity, he shall be handed over to the Medical 
Service." 
Pointing out that the prisoners who passed through Dulag Luft appeared to 
have had no exercise while there, Counsel quoted Art. 13 of the Convention: 
"... They shall have facilities for engaging in physical exercises and 
obtaining the benefit of being out of doors." 
During his closing address, one of the Defence Counsel made three 
submissions regarding the scope of the Convention. The first was that under 
the Geneva Convention interrogation was not unlawful. The second was that 
to obtain information by a trick was not unlawful, under the same Con- 
vention. The third point was that to interrogate a wounded prisoner was not 
in itself unlawful unless it could be proved that that interrogation amounted 
to what could be described as physical or mental ill-treatment. The Court 
expressed its agreement with these three principles. 

It will be noticed that the charge alleged that the accused "were together 
concerned as parties to the ill-treatment of British Prisoners of War." In 
connection with this part of the charge the Prosecutor quoted Paragraph 8 (ii) 
of the Royal Warrant: 

<r Where there is evidence that a war crime has been the result of 

concerted action upon the part of a unit or group of men, then evidence 

given upon any charge relating to that crime against any member of such 

unit or group may be received as prima facie evidence of the 

responsibility of each member of that unit or group for that crime. In any 

such case all or any members of any such unit or group may be charged 

and tried jointly in respect of any such war crime and no application by 

any of them to be tried separately shall be allowed by the Court." 

During the hearing of the closing addresses for the Defence, the Legal 

Member of the Court asked the Prosecutor what his attitude would be if the 

commandant of a prisoner-of-war camp, although completely ignorant of the 

ill usage of prisoners of war, was negligent in his supervision of his 

subordinates. Would the Prosecutor say that that made him a party to the 



293 

ill-treatment, or would he say that in order to make a person a party he must 
be guilty of more than negligence, and must at least come within the category 
of an aider and abettor as that phrase is commonly known to English criminal 
law? The Prosecutor submitted that a man might be concerned as a party 
either through intention, where "malice — a designed plan — " was present, 
or through neglect so acute that the established standards of English criminal 
law would apply. The standard of negligence would have to be of such a 
degree that it was considered criminal, gross, flagrant, "or those other strong 
terms with which our English law books are familiar." He agreed with the 
Legal Member when the latter claimed that the only standard of neglect in 
accordance with English criminal law which would make a man guilty of a 
crime of a major nature was the neglect necessary to prove manslaughter, in 
other words, a recklessness and a complete disregard of the situation. Later 
during the hearing of the closing of the case for the Defence, the Legal 
Member announced that the Court had come to a decision on the inter- 
pretation of the phrase "were concerned together as parties to the ill- 
treatment of British prisoners of war." The Court had agreed that no amount 
of mere negligence, however gross, could bring a person within the category 
of a party as defined in the particulars of the charge; that the word "parties" 
must of necessity mean that the person concerned must have had some 
knowledge of what was going on and must have deliberately refrained from 
stopping such practice; and that the person, in order to be a party, must come 
within the category of a principal in the second degree or aider and abettor in 
the ill-treatment alleged. The words "aider and abettor" and "principal in the 
second degree" would have the same meanings as in the ordinary criminal law 
of England. 



294 

DOCUMENT NO. 71 

UNITED STATES OF AMERICA v. TOMOYUKI YAMASHITA 

(U.S. Military Commission, Manila, 7 December 1945) 

SOURCES 

National Archives of the United States 
4 LRTWC 1 
2 Friedman 1596 

NOTE 
Shortly after the end of World War II hostilities in the Pacific (1941-1945), 
General Tomoyuki Yamashita, who had been the Japanese commander in the 
1944-1945 Battle of the Philippines, was charged with having failed to 
exercise proper control over the troops under his command, allowing them to 
commit widespread violations of the laws and customs of war. He was tried 
before a United States Military Commission in Manila, found guilty, and 
sentenced to death by hanging. One of the main contentions advanced by the 
defense was that he was a prisoner of war and was, therefore, entitled to all of 
the trial safeguards contained in the 1929 Geneva Prisoner-of-War Con- 
vention (DOCUMENT NO. 49). (For the action of the Supreme Court of the 
United States with respect to this contention, announced while passing on an 
application for leave to file a petition for writs of habeas corpus and 
prohibition, see DOCUMENT NO. 76.) Unlike the usual procedure of 
military commissions, which normally only announce findings of guilt or 
innocence and the sentence, if any, the President of this Military Commission 
delivered a statement which appears to have been a short summary of the 
basis for its findings. Thereafter, General of the Army Douglas MacArthur, 
the United States Commander-in-Chief, in confirming the sentence and 
ordering it executed, also made a statement giving the reasons for his action. 

TEXTS 
DECISION OF THE COMMISSION (7 December 1945): 

GENERAL REYNOLDS: The charge against the Accused is as follows: 
"Tomoyuki YAMASHITA, General Imperial Japanese Army, between 9 
October 1944 and 2 September 1945, at Manila and at other places in the 
Philippine Islands, while commander of armed forces of Japan at war with the 
United States of America and its allies, unlawfully disregarded and failed to 
discharge his duty as commander to control the operations of the members of 
his command, permitting them to commit brutal atrocities and other high 
crimes against people of the United States and of its allies and dependencies, 
particularly the Philippines; and he, General Tomoyuki YAMASHITA, 
thereby violated the laws of war." 

It is backed by Bills of particulars specifying one hundred twenty-three 
separate items or offenses, most of which were presented for our con- 
sideration. 



295 

The crimes alleged to have been permitted by the Accused in violation of 
the laws of war may be grouped into three categories: (1) Starvation, 
execution or massacre without trial and mal-administration generally of 
civilian internees and prisoners of war; (2) Torture, rape, murder and mass 
execution of very large numbers of residents of the Philippines, including 
women and children and members of religious orders, by starvation, 
beheading, bayoneting, clubbing, hanging, burning alive, and destruction by 
explosives; (3) Burning and demolition without adequate military necessity of 
large numbers of homes, places of business, places of religious worship, 
hospitals, public buildings, and educational institutions. In point of time, the 
offenses extended throughout the period the Accused was in command of 
Japanese troops in the Philippines. In point of area, the crimes extended 
throughout the Philippine Archipelago, although by far most of the incredible 
acts occurred on Luzon. It is noteworthy that the Accused made no attempt 
to deny that the crimes were committed, although some deaths were 
attributed by Defense Counsel to legal execution of armed guerrillas, hazards 
of battle and action of guerrilla troops favorable to Japan. 

The Commission has heard 286 persons during the course of this trial, most 
of whom have given eye-witness accounts of what they endured or what they 
saw. They included doctors and nurses; lawyers, teachers, businessmen; men 
and women of religious orders; prisoners of war and civilian internees; 
officers of the United States Army; officers of the Japanese Army and Navy; 
Japanese civilians; a large number of men, women and children of the 
Philippines; and the Accused. Testimony has been given in eleven languages 
or dialects. Many of the witnesses displayed incredible scars of wounds which 
they testified were inflicted by Japanese from whom they made miraculous 
escapes followed by remarkable physical recovery. For the most part, we 
have been impressed by the candor, honesty and sincerity of the witnesses 
whose testimony is contained in 4055 pages in the record of trial. 

We have received for analysis and evaluation 423 exhibits consisting of 
official documents of the United States Army, The United States State 
Department, and the Commonwealth of the Philippines; affidavits; captured 
enemy documents or translations thereof; diaries taken from Japanese 
personnel, photographs, motion picture films, and Manila newspapers. 

The Prosecution presented evidence to show that the crimes were so 
extensive and widespread, both as to time and area, that they must either 
have been wilfully permitted by the Accused, or secretly ordered by the 
Accused. Captured orders issued by subordinate officers of the Accused were 
presented as proof that they, at least, ordered certain acts leading directly to 
exterminations of civilians under the guise of eliminating the activities of 
guerrillas hostile to Japan. With respect to civilian internees and prisoners of 
war, the proof offered to the Commission alleged criminal neglect, especially 
with respect to food and medical supplies, as well as complete failure by the 
higher echelons of command to detect and prevent cruel and inhuman 
treatment accorded by local commanders and guards. The Commission 
considered evidence that the provisions of the Geneva Convention received 



296 

scant compliance or attention, and that the International Red Cross was 
unable to render any sustained help. The cruelties and arrogance of the 
Japanese Military Police, prison camp guards and officials, with like action by 
local subordinate commanders were presented at length by the prosecution. 

The Defense established the difficulties faced by the Accused with respect 
not only to the swift and overpowering advance of American forces, but also 
to the errors of his predecessors, weaknesses in organization, equipment, 
supply with especial reference to food and gasoline, training, communication, 
discipline and morale of his troops. It was alleged that the sudden assignment 
of Naval and Air Forces to his tactical command presented almost 
insurmountable difficulties. This situation was followed, the Defense con- 
tended, by failure to obey his orders to withdraw troops from Manila, and the 
subsequent massacre of unarmed civilians, particularly by Naval forces. 
Prior to the Luzon Campaign, Naval forces had reported to a separate 
ministry in the Japanese Government and Naval Commanders may not have 
been receptive or experienced in this instance with respect to a joint land 
operation under a single commander who was designated from the Army 
Service. As to the crimes themselves, complete ignorance that they had 
occurred was stoutly maintained by the Accused, his principal staff officers 
and subordinate commanders; further, that all such acts, if committed, were 
directly contrary to the announced policies, wishes and orders of the 
Accused. The Japanese Commanders testified that they did not make 
personal inspections or independent checks during the Philippine campaign 
to determine for themselves the established procedures by which their 
subordinates accomplish their missions. Taken at full face value, the 
testimony indicates that Japanese senior commanders operate in a vacuum, 
almost in another world with respect to their troops, compared with 
standards American Generals take for granted. 

We have considered carefully the final statements of the Prosecution and 
Defense Counsel. 

This Accused is an officer of long years of experience, broad in its scope, 
who has had extensive command and staff duty in the Imperial Japanese 
Army in peace as well as war in Asia, Malaya, Europe, and the Japanese 
Home Islands. Clearly, assignment to command military troops is accom- 
panied by broad authority and heavy responsibility. This has been true in all 
armies throughout recorded history. It is absurd, however, to consider a 
commander a murderer or rapist because one of his soliders commits a 
murder or a rape. Nonetheless, where murder and rape and vicious, 
revengeful actions are widespread offenses, and there is no effective attempt 
by a commander to discover and control the criminal acts, such a commander 
may be held responsible, even criminally liable, for the lawless acts of his 
troops, depending upon their nature and the circumstances surrounding 
them. Should a commander issue orders which lead directly to lawless acts, 
the criminal responsibility is definite and has always been so understood. The 
Rules of Land Warfare, Field Manual 27-10, United States Army, are clear 
on these points. It is for the purpose of maintaining discipline and control, 



297 

among other reasons, that military commanders are given broad powers of 
administering military justice. The tactical situation, the character, training 
and capacity of staff officers and subordinate commanders as well as the traits 
of character, and training of his troops are other important factors in such 
cases. These matters have been the principle [sic] considerations of the 
Commission during its deliberations. 

The Accused, his Senior Counsel and personal interpreter will take 
position before the Commission. 

(Whereupon, Colonel Clarke, Mr. Hamamoto, and the Accused stood 
before the Commission.) 

(Whereupon the Accused addressed in the Commission in native tongue.) 

GENERAL REYNOLDS: Mr. Hamamoto may read the statement. 

MR. HAMAMOTO: "In my capacity as Commander-in-Chief of the 
Japanese 14th Area Army I met and fought, here in the Philippines, 
numerically and qualitatively superior armed forces of the United States. 
Throughout this engagement I have endeavored to fulfil to the best of my 
ability the requirements of my position and have done my best to conduct 
myself at all times in accordance with the principles of fairness and justice. 

"I have been arraigned and tried before this Honorable Commission as a 
war criminal. I wish to state that I stand here today with the same clear 
conscience as on the first day of my arraignment and I swear before my 
Creator and everything sacred to me that I am innocent of the charges made 
against me. 

"With reference to the trial itself I wish to take this opportunity to express 
my gratitude to the United States of America for having accorded to an 
enemy General the unstinted services of a staff of brilliant, conscientious and 
upright American officers and gentlemen as Defense Counsel." 

Thank you. 

GENERAL REYNOLDS: General Yamashita: The Commission con- 
cludes: (1) That a series of atrocities and other high crimes have been 
committed by members of the Japanese armed forces under your command 
against people of the United States, their allies and dependencies throughout 
the Philippine Islands; that they were not sporadic in nature but in many 
cases were methodically supervised by Japanese officers and noncommis- 
sioned officers; (2) That during the period in question you failed to provide 
effective control of your troops as was required by the circumstances. 

Accordingly upon secret written ballot, two-thirds or more of the members 
concurring, the Commission finds you guilty as charged and sentences you to 
death by hanging. 

ACTION OF THE REVIEWING AUTHORITY 
"HEADQUARTERS 
UNITED STATES ARMY FORCES WESTERN PACIFIC 
OFFICE OF THE COMMANDING GENERAL 

APO 707 

12 December 1945 

In the foregoing case of Tomoyuki Yamashita, the sentence is approved. 



298 

Pursuant to paragraph 2, Letter, General Headquarters, United States 
Army Forces, Pacific, AG 000.5 (24 September 45) DCS, subject: Trial of War 
Criminals, execution of sentence is withheld pending the action of the 
Commander in Chief. 

(signed) W.D. Styer 

(typed) W.D.STYER 

Lieutenant General, United States Army 

Commanding" 
ACTION OF THE CONFIRMING AUTHORITY 

"GENERAL HEADQUARTERS 
UNITED STATES ARMY FORCES, PACIFIC 

A. P. 0. 500 
7 February 1946 

It is not easy for me to pass penal judgment upon a defeated adversary in a 
major military campaign. I have reviewed the proceedings in vain search for 
some mitigating circumstance on his behalf. I can find none. Rarely has so 
cruel and wanton a record been spread to public gaze. Revolting as this may 
be in itself, it pales before the sinister and far reaching implication thereby 
attached to the profession of arms. The soldier, be he friend or foe, is charged 
with the protection of the weak and unarmed. It is the very essence and 
reason for his being. When he violates this sacred trust he not only profanes 
his entire cult but threatens the very fabric of international society. The 
traditions of fighting men are long and honorable. They are based upon the 
noblest of human traits, - sacrifice. This officer, of proven field merit, 
entrusted with high command involving authority adequate to responsibility, 
has failed this irrevocable standard; has failed his duty to his troops, to his 
country, to his enemy, to mankind; has failed utterly his soldier faith. The 
transgressions resulting therefrom as revealed by the trial are a blot upon the 
military profession, a stain upon civilization and constitute a memory of 
shame and dishonor that can never be forgotten. Peculiarly callous and 
purposeless was the sack of the ancient city of Manila, with its Christian 
population and its countless historic shrines and monuments of culture and 
civilization, which with campaign conditions reversed had previously been 
spared. 

It is appropriate here to recall that the accused was fully forewarned as to 
the personal consequences of such atrocities. On October 24 - four days 
following the landing of our forces on Leyte - it was publicly proclaimed that I 
would "hold the Japanese Military authorities in the Philippines immediately 
liable for any harm which may result from failure to accord prisoners of war, 
civilian internees or civilian non-combatants the proper treatment and the 
protection to which they of right are entitled." 

No new or retroactive principles of law, either national of international, are 
involved. The case is founded upon basic fundamentals and practice as 
immutable and as standardized as the most matured and irrefragable of social 
codes. The proceedings were guided by that primary rational of all judicial 
purpose — to ascertain the full truth unshackled by any artificialities of 



299 

narrow method or technical arbitrariness. The results are beyond challenge. 
I approve the findings and sentences of the Commission and direct the 

Commanding General, United States Army Forces, Western Pacific, to 
execute the judgment upon the defendant, stripped of uniform, decorations 
and other appurtenances signifying membership in the military profession. 

(signed) Douglas MacArthur 
(typed) DOUGLAS MacARTHUR, 
General of the Army, United States Army, 
Commander-in-Chief 



300 

DOCUMENT NO. 72 

TRIAL OF NISUKE MASUDA AND FOUR OTHERS 

(THE JALUIT ATOLL CASE) 

(U.S. Military Commission, Kwajalein, 13 December 1945) 

SOURCES 
1 LRTWC 71 
13 Ann. Dig. 286 

NOTE 
This is a typical case involving the summary, and often extremely cruel, 
execution of prisoners of war by the Japanese Imperial armed forces during 
World War II (1941-1945). (For other examples, see DOCUMENT NO. 101 
under the rubric "Murder of Captured Aviators.") 

EXTRACTS 

2. THE CHARGE AND SPECIFICATION 

The accused were Rear- Admiral Masuda, Lieutenant Yoshimura, Ensign 
Kawachi, Ensign Tasaki, and Warrant Officer Tanaka, all of the Imperial 
Japanese Navy. 

The charge against the five accused, as approved by the Convening 
Authority, was one of murder. The specification stated that they "did, on or 
about 10th March, 1944, on the Island of Aineman, Jaliut Atoll, Marshall 
Islands, at a time when a state of war existed between the United States of 
America and the Japanese Empire, wilfully, feloniously, with malice 
aforethought without justifiable cause, and without trial or other due 
process, assault and kill, by shooting and stabbing to death, three American 
fliers, then and there attached to the Armed forces of the United States of 
America, and then and there captured and unarmed prisoners of war in the 
custody of the said accused, all in violation of the dignity of the United States 
of America, the International rules of warfare and the moral standards of 
civilised society." 

An objection made by the accused on the grounds that the inclusion in the 
charge of the words "moral standards of civilised society" was improper and 
non-legal was over-ruled by the Commission. 

The charge as originally drafted contained the word "unlawfully" instead of 
"wilfully"; the change was authorised by the Convening Authority on the 
request of the Commission. 

Rear- Admiral Masuda did not appear at the trial, and during its course and 
on the direction of the Convening Authority, a nolle prosequi was entered by 
the Judge Advocate as to the charge and specification against him. He had 
committed suicide before the opening of the trial, and had before his death 
written a statement in which he confessed that he had ordered the execution 
of the airmen. 



301 

3. THE ARGUMENTS USED BY THE PROSECUTION IN SUPPORT OF THE CHARGE 

AND SPECIFICATION 

The Prosecution brought forward a number of witnesses to show that the 
three American airmen on or about February, 1944, were forced to land near 
Jaluit Atoll, Marshall Islands, and subsequently became unarmed prisoners 
of war on Emidj Island, on which was established the Japanese Naval 
Garrison Force Headquarters under the command of Rear- Admiral Masuda. 
Approximately one month later, on the orders of Masuda, and without having 
been tried, the airmen were taken to a cemetery on Aineman, an adjoining 
island, where they were secretly shot to death and then cremated. 
Yoshimura, Kawachi and Tanaka had admitted to having killed the prisoners 
by shooting; one had also used a sword. Tasaki had admitted that, having 
been in charge of the prisoners, he had arranged their release to the 
executioners, knowing that they were to be killed. Signed statements to the 
above effect were produced before the court. 

One of the two Judge Advocates, in his opening argument, stated that one 
of the basic principles which had actuated the development of the laws and 
customs of war was the principle of humanity which prohibited the 
employment of any such kind or degree of violence as was not necessary for 
the purposes of war. Among the many and numerous restrictions and 
limitations imposed by virtue of this principle was "the universally 
recognised and accepted rule" provided in Article 23 (c) of the 1907 Hague 
Convention which states: "It is particularly forbidden ... to kill or wound an 
enemy who, having laid down his arms, or no longer having means of defence, 
has surrendered at discretion." If this rule did not suffice, a variety of 
additional rules had been universally recognised and accepted, protecting 
prisoners of war from outrages, indignities and punishment. 

His colleague relied instead on Article 2 of Part I of the Geneva Convention 
of 1929 relative to the Treatment of Prisoners of War which states that: 
"Prisoners of War are in the power of the hostile Government, but not of the 
individuals of formations which captured them. They shall at all times be 
humanely treated and protected, particularly against acts of violence, from 
insults and from public curiosity. Measures of reprisals against them are 
forbidden." 

4. THE CASE FOR THE DEFENCE 

(ii) The Defence of Superior Orders 

The accused pleaded not guilty. They admitted their part in the execution 
of the American Prisoners of War, but claimed as a defence that, as military 
men of the Japanese Empire, they were acting under orders of a superior 
authority, which they were bound to obey. 

One of the defending Counsel, himself a Lieutenant-Commander in the 
Imperial Japanese Navy, described the absolute discipline and obedience 
which was expected from the Japanese forces, and quoted an Imperial 
Rescript which included the words: "Subordinates should have the idea that 
the orders from their superiors are nothing but the orders personally from 
His Majesty the Emperor." The Japanese forces were exceptional among the 
world's armed forces in this respect and, therefore, he claimed, it was 



302 

impossible to apply therein "the liberal and individualistic ideas which rule 
usual societies unmodified to this totalistic and absolutistic military society." 
The strategic situation was so critical in early 1944 that the characteristic 
referred to was displayed in the Jaluit unit to an exceptional degree. 
Furthermore the order was given direct by a Rear-Admiral to "mere 
Warrant Officers and Petty Officers." If they had refused to obey it, 
"everyone would have fallen upon them." 

As the accused had no criminal intent, it was clear that they had committed 
no crime. 

The other defending Counsel pointed out that the executioners each 
requested that they should not be assigned the task of carrying out the 
killing, but when emphatically ordered by Masuda, a man of strong character, 
they had obeyed, in accordance with their training. Their actions were not of 
their own volition; they were the will of another. 

Tasaki, the custodian of the prisoners of war, who arranged their handing 
over to the executioners, also merely acted in accordance with the orders of 
the Rear- Admiral. Certainly the latter had told him why he was to surrender 
the prisoners, but this fact in no way placed him in the position of a participant 
in the commission of a crime. 
5. THE ARGUMENTS OF THE PROSECTUION USED IN COUNTERING THE PLEAS 

OF THE DEFENCE 
(ii) Concerning the Defence of Superior Orders 

One of the two Judge Advocates quoted three authorities with the 
intention of securing the rejection by the Commission of the plea of superior 
orders. The Judge Advocate General, he said, had made reference, in Court 
Martial orders 212-1919, to the following dictum in U.S. v. Carr (25 Fed. 
Cases 307): "Soldier is bound to obey only the lawful orders of his superiors. If 
he receives an order to do an unlawful act, he is bound neither by his duty nor 
by his oath to do it. So far from such an order being a justification, it makes the 
party giving the order an accomplice in the crime." 

In another case, involving the killing of a Nicaraguan citizen by a member 
of the United States forces, the Judge Advocate stated: "An order illegal in 
itself and not justified by the rules and usages of war, or in its substance 
clearly illegal, so that a man of ordinary sense and understanding would know 
as soon as he heard the order read or given that it was illegal, will afford no 
protection for a homicide, provided the act with which he may be charged has 
all the ingredients in it which may be necessary to constitute the same crime 
in law" (CMO 4-1929). 

In the opinion of the Judge Advocate, however, the statement of the law 
most clearly in point was contained in "the rules promulgated by the Supreme 
Command of the Allied Powers for use in war crime cases. This body of 
international law, briefly known as the SCAP rules and adopted by the 
Commission at the direction of the Judge Advocate General of the Navy, has 
the following provision applicable to the defence raised by the accused, 
quoting sub-paragraph (f) of paragraph 16: 



303 

The official position of the accused shall not absolve him from re- 
sponsibility, nor be considered in mitigation of punishment. Further, action 
pursuant to order of the accused's superior, or of his government, shall not 
constitute a defence but may be considered in mitigation of punishment if the 
commission determines that justice so requires.' " 

6. THE EVIDENCE 

The evidence is not here set out at length, since, in the main, the facts were 
not disputed, and the case turned essentially on a question of law. The facts 
derived from an examination of the witnesses for the Prosecution are set out 
in brief under heading 3 (supra). These witnesses comprised a legal officer 
who had acted as war crimes and atrocities investigator for the Marshalls 
Gilberts Area, an islander who had witnessed the capturing of the prisoners, 
one of the captors, a Japanese Lieutenant who had interrogated them, an 
interpreter who was present during the interrogation, a Japanese truck- 
driver who had been ordered by Kawachi to take the airmen to the cemetery, 
the seaman who cremated their bodies, a Japanese Major who testified to the 
authenticity of Masuda's written statements on the killing of the prisoners, a 
United States soldier who translated from the Japanese various documents 
before the Court, and one of the two Judge Advocates in the trial, who 
testified that the statements by the four accused which were before the 
Commission had actually been signed by them. 

The three accused of having been the actual executioners gave evidence on 
their own behalf. Tasaki's evidence was given only by way of a signed 
statement. 

7. THE VERDICT 

All four accused were found guilty. 

8. THE SENTENCE 

Yoshimura, Kawachi and Tanaka were sentenced to death by hanging. 

Tasaki was sentenced to ten years' imprisonment. His punishment was 
lighter than that of the others because of the "brief, passive and mechanical 
participation of the accused." 

The proceedings, findings and sentences were approved by the Com- 
mander of the Marshalls Gilberts Area, Rear- Admiral Harrill. 



304 

DOCUMENT NO. 73 

CONTROL COUNCIL LAW NO. 10 
(ALLIED CONTROL COUNCIL, Berlin, 20 December 1945) 

SOURCE 
lT.W.C.xvi 

NOTE 
It was originally anticipated that the International Military Tribunal 
created by the London Agreement of 8 August 1945 (DOCUMENT NO. 68) 
would conduct more than one trial of major accused war criminals after the 
end of World War II in Europe. (It did not. ) Nevertheless, it was realized that 
there would be a need for the creation of other courts to try the many 
individual accused violators of the law of war as to whom information had 
been collected by the United Nations War Crimes Commission or the various 
Allied nations. Of particular importance was the system of cooperation to be 
employed by the four Powers which occupied zones in Germany under the 
military occupation which followed the end of hostilities. The present law, 
promulgated by the four Zone Commanders who constituted the Control 
Council for Germany as a whole, established the basic system. (For the 
Ordinance issued by the Military Government of the U.S. Zone of Occupation 
in implementation of the Control Council Law, see DOCUMENT NO. 86.) 

TEXT 
CONTROL COUNCIL LAW NO. 10 

PUNISHMENT OF PERSONS GUILTY OF WAR CRIMES, CRIMES AGAINST 
PEACE AND AGAINST HUMANITY 

In order to give effect to the terms of the Moscow Declaration of 30 October 
1943 and the London Agreement of 8 August 1945, and the Charter issued 
pursuant thereto and in order to establish a uniform legal basis in Germany 
for the prosecution of war criminals and other similar offenders, other than 
those dealt with by the International Military Tribunal, the Control Council 
enacts as follows: 

Article I 

The Moscow Declaration of 30 October 1943 "Concerning Responsibility of 
Hitlerites for Committed Atrocities" and the London Agreement of 8 August 
1945 "Concerning Prosecution and Punishment of Major War Criminals of the 
European Axis" are made integral parts of this Law. Adherence to the 
provisions of the London Agreement by any of the United Nations, as 
provided for in Article V of that Agreement, shall not entitle such nation to 
participate or interfere in the operation of this Law within the Control 
Council area of authority in Germany. 

Article II 

1. Each of the following acts is recognized as a crime: 



305 

(a) Crimes against Peace. Initiation of invasions of other countries and 
wars of aggression in violation of international laws and treaties, including 
but not limited to planning, preparation, initiation or waging a war of 
aggression, or a war of violation of international treaties, agreements or 
assurances, or participation in a common plan or conspiracy for the 
accomplishment of any of the foregoing. 

(b) War Crimes. Atrocities or offences against persons or property 
constituting violations of the laws or customs of war, including but not limited 
to, murder, ill treatment or deportation to slave labour or for any other 
purpose, of civilian population from occupied territory, murder or ill 
treatment of prisoners of war or persons on the seas, killing of hostages, 
plunder of public or private property, wanton destruction of cities, towns or 
villages, or devastation not justified by military necessity. 

(c) Crimes against Humanity. Atrocities and offences, including but not 
limited to murder, extermination, enslavement, deportation, imprisonment, 
torture, rape, or other inhumane acts committed against any civilian 
population, or persecutions on political, racial or religious grounds whether 
or not in violation of the domestic laws of the country where perpetrated. 

(d ) Membership in categories of a criminal group or organization declared 
criminal by the International Military Tribunal. 

2. Any person without regard to nationality or the capacity in which he 
acted, is deemed to have committed a crime as defined in paragraph 1 of this 
Article, if he was (a) a principal or (b) was an accessory to the commission of 
any such crime or ordered or abetted the same or (c) took a consenting part 
therein or (d) was connected with plans or enterprises involving its 
commission or (e) was a member of any organization or group connected with 
the commission of any such crime or (f) with reference to paragraph 1 (a),\f 
he held a high political, civil or military (including General Staff) position in 
Germany or in one of its Allies, co-belligerents or satellites or held high 
position in the financial, industrial or economic life of any such country. 

3. Any person found guilty of any of the Crimes above mentioned may upon 
conviction be punished as shall be determined by the tribunal to be just. Such 
punishment may consist of one of more of the following: 

(a) Death. 

(b) Imprisonment for life or a term of years, with or without hard labour. 

(a) Fine, and imprisonment with or without hard labour, in lieu thereof. 

(d) Forfeiture of property. 

(e) Restitution of property wrongfully acquired. 

(f) Deprivation of some or all civil rights. 

Any property declared to be forfeited or the restitution of which is ordered 
by the Tribunal shall be delivered to the Control Council for Germany, which 
shall decide on its disposal. 

4. (a) The official position of any person, whether as Head of State or as a 
responsible official in a Government Department, does not free him from 
responsibility for a crime or entitle him to mitigation of punishment. 

(b ) The fact that any person acted pursuant to the order of his Government 



306 

or of a superior does not free him from responsibility for a crime, but may be 
considered in mitigation. 

5. In any trial or prosecution for a crime herein referred to, the accused 
shall not be entitled to the benefits of any statute of limitation in respect of the 
period from 30 January 1933 to 1 July 1945, nor shall any immunity, pardon or 
amnesty granted under the Nazi regime be admitted as a bar to trial or 
punishment. 

Article III 

1. Each occupying authority, within its Zone of occupation, 

(a) shall have the right to cause persons within such Zone suspected of 
having committed a crime, including those charged with crime by one of the 
United Nations, to be arrested and shall take under control the property, real 
and personal, owned or controlled by the said persons, pending decisions as to 
its eventual disposition. 

(b) shall report to the Legal Directorate the names of all suspected 
criminals, the reasons for and the places of their detention, if they are 
detained, and the names and location of witnesses. 

(c) shall take appropriate measures to see that witnesses and evidence will 
be available when required. 

(d) shall have the right to cause all persons so arrested and charged, and 
not delivered to another authority as herein provided, or released, to be 
brought to trial before an appropriate tribunal. Such tribunal may, in the case 
of crimes committed by persons of German citizenship or nationality against 
other persons of German citizenship or nationality, or stateless persons, be a 
German Court, if authorized by the occupying authorities. 

2. The tribunal by which persons charged with offenses hereunder shall be 
tried and the rules and procedure thereof shall be determined or designated 
by each Zone Commander for his respective Zone. Nothing herein is intended 
to, or shall impair or limit the jurisdiction or power of any court or tribunal 
now or hereafter established in any Zone by the Commander thereof, or of the 
International Military Tribunal established by the London Agreement of 8 
August 1945. 

3. Persons wanted for trial by an International Military Tribunal will not 
be tried without the consent of the Committee of Chief Prosecutors. Each 
Zone Commander will deliver such persons who are within his Zone to that 
committee upon request and will make witnesses and evidence available to it. 

4. Persons known to be wanted for trial in another Zone or outside 
Germany will not be tried prior to decision under Article IV unless the fact of 
their apprehension has been reported in accordance with Section Kb) of this 
Article, three months have elapsed thereafter, and no request for delivery of 
the type contemplated by Article IV has been received by the Zone 
Commander concerned. 

5. The execution of death sentences may be deferred by not to exceed one 
month after the sentence has become final when the Zone Commander 
concerned has reason to believe that the testimony of those under sentence 
would be of value in the investigation and trial of crimes within or without his 



307 



Zone. 

6. Each Zone Commander will cause such effect to be given to the 
judgments of courts of competent jurisdiction, with respect to the property 
taken under his control pursuant hereto, as he may deem proper in the 
interest of justice. 

Article IV 

When any person in a Zone in Germany is alleged to have committed a 
crime, as defined in Article II, in a country other than Germany or in another 
Zone, the government of that nation or the Commander of the latter Zone, as 
the case may be, may request the Commander of the Zone in which the person 
is located for his arrest and delivery for trial to the country or Zone in which 
the crime was committed. Such request for delivery shall be granted by the 
Commander receiving it unless he believes such person is wanted for trial or 
as a witness by an International Military Tribunal, or in Germany, or in a 
nation other than the one making the request, or the Commander is not 
satisfied that delivery should be made, in any of which cases he shall have the 
right to forward the said request to the Legal Directorate of the Allied 
Control Authority. A similar procedure shall apply to witnesses, material 
exhibits and other forms of evidence. 

2. The Legal Directorate shall consider all requests referred to it, and shall 
determine the same in accordance with the following principles, its 
determination to be communicated to the Zone Commander. 

(a) A person wanted for trial or as a witness by an International Military 
Tribunal shall not be delivered for trial or required to give evidence outside 
Germany, as the case may be, except upon approval of the Committee of 
Chief Prosecutors acting under the London Agreement of 8 August 1945. 

(b) A person wanted for trial by several authorities (other than an 
International Military Tribunal) shall be disposed of in accordance with the 
following priorities: 

(1) If wanted for trial in the Zone in which he is, he should not be delivered 
unless arrangements are made for his return after trial elsewhere; 

(2) If wanted for trial in a Zone other than that in which he is, he should be 
delivered to that Zone in preference to delivery outside Germany unless 
arrangements are made for his return to that Zone after trial elsewhere; 

(3) If wanted for trial outside Germany by two or more of the United 
Nations, of one of which he is a citizen, that one should have priority; 

(4) If wanted for trial outside Germany by several countries, not all of 
which are United Nations, United Nations should have priority; 

(5) If wanted for trial outside Germany by two or more of the United 
Nations, then, subject to Article IV (b) (3) above, that which has the most 
serious charges against him, which are moreover supported by evidence, 
should have priority. 

Article V 
The delivery, under Article IV of this Law, of persons for trial shall be 
made on demands of the Governments or Zone Commanders in such a manner 
that the delivery of criminals to one jurisdiction will not become the means of 



308 

defeating or unnecessary delaying the carrying out of justice in another place. 
If within six months the delivered person has not been convicted by the Court 
of the zone or country to which he has been delivered, then such person shall 
be returned upon demand of the Commander of the Zone where the person 
was located prior to delivery. 



309 
DOCUMENT NO. 74 

TRIAL OF ERICH HEYER AND SIX OTHERS 

(THE ESSEN LYNCHING CASE) 
(British Military Court, Essen, 22 December 1945) 

SOURCES 

1 LRTWC 88 

13 Ann. Dig. 287 

NOTE 

Among the numerous illegal general orders issued by the Nazis in Germany 
during World War II (1939-1945) was one which directed the police and the 
military not to interfere if members of the civilian population demonstrated 
their displeasure concerning the bombings to which they were being 
subjected by attacking enemy airmen who had parachuted on to German 
territory from crippled aircraft and had thereafter been taken into custody as 
prisoners of war. (See DOCUMENT NO. 104.) Although that order was not 
directly involved here, this case graphically illustrates the result to be 
expected when prisoners of war are not given the protection to which they are 
entitled under the laws and customs of war. 

EXTRACTS 

2. THE CHARGE 

The seven accused were jointly charged with committing a war crime in 
that they, at Essen- West on the 13th December 1944, in violation of the laws 
and usages of war, were with other persons, concerned in the killing of three 
unidentified British airmen, prisoners of war. 

At the material time, one of the accused, Erich Heyer, had been a Captain 
in the German army; and the accused Peter Koenen had been a private in the 
German army. 

The rest of the accused were German civilians, inhabitants of Essen. 

3. THE CASE FOR THE PROSECUTION 

The Prosecutor stated that the three captured British airmen had been 
handed by the German police into the custody of the military unit which was 
under the command of the accused Hauptmann Heyer. The three airmen 
were placed by Hauptmann Heyer under an escort consisting of an N.C.O., 
who was not before the Court, and the accused, Private Koenen. 

The Prosecution alleged that Heyer had given to the escort instructions 
that they should take the prisoners to the nearest Luftwaffe unit inter- 
rogation. It was submitted by the Prosecution that this order, though on the 
face of it correct, was given out to the escort from the steps of the barracks in 
a loud voice so that the crowd, which had gathered, could hear and would 
know exactly what was going to take place. It was alleged that he had ordered 
the escort not to interfere in any way with the crowd if they should molest the 
prisoners. 



310 

When the prisoners of war were marched through one of the main streets of 
Essen, the crowd around grew bigger, started hitting them and throwing 
sticks and stones at them. An unknown German corporal actually fired a 
revolver at one of the airmen and wounded him in the head. When they 
reached the bridge, the airmen were eventually thrown over the parapet of 
the bridge; one of the airmen was killed by the fall; the others were not dead 
when they landed, but were killed by shots from the bridge and by members 
of the crowd who beat and kicked them to death. 

The allegation of the Prosecution was that there were three stages in the 
killing, starting with the incitement at the entrance to the barracks, 
continuing with the beating and finally the throwing over the parapet and 
shooting. The accused Heyer "lit the match." Each person who struck a blow 
was "putting flame to the fuel," which was the enraged population, and finally 
"the explosion" came on the bridge. It was, therefore, the submission of the 
Prosecution that every person who, following the incitement to the crowd to 
murder these men, voluntarily took aggressive action against any one of 
these three airmen, was guilty in that he was concerned in the killing. It was 
impossible to separate any one of these acts from another; they all made up 
what is known as a lynching. From the moment they left those barracks, the 
men were doomed and the crowd knew they were doomed and every person in 
that crowd who struck a blow was both morally and criminally responsible for 
the deaths of the three men. 

Hauptmann Heyer admittedly never struck any physical blow against the 
airmen at all. His part in this affair was an entirely verbal one; in the 
submission of the Prosecution this was one of those cases of words that kill, 
and he was as responsible, if not more responsible, for the deaths of the three 
men as any one else concerned. 

The Prosecutor expressly stated that he was not suggesting that the mere 
fact of passing on the secret order to the escort that they should not interfere 
to protect the prisoners against the crowd was sufficiently proximate to the 
killing, so that on that alone Heyer was concerned in the killing. The 
Prosecutor advised the Court that, if it was not satisfied beyond reasonable 
doubt that he had incited the crowd to lynch these airmen, he was then 
entitled to acquittal, but if the Court was satisfied that he did in fact say these 
people were to be shot, and did in fact incite the crowd to kill the airmen, then, 
in the submission of the Prosecution, he was guilty. 

The Prosecution referred to the rule of British law in which an instigator 
may be regarded as a principal. The same held good in this case if a man 
incited someone else to commit a crime and that crime was committed, he was 
triable and punishable as a principal and it made no difference in this repsect 
whether the trial took place under British law or under the Regulations for 
the trial of war criminals. 

Referring to the member of the escort, Private Koenen, the Prosecutor 
pointed out that his position was somewhat difficult because his military duty 
and his conscience must have conflicted. He was given an order not to 
interfere and he did not interfere. He stood by while these three airmen were 



311 

murdered. Mere inaction on the part of a spectator is not in itself a crime. A 
man might stand by and see someone else drowning and let him go and do 
nothing. He has committed no crime. But in certain circumstances a person 
may be under a duty to do something. In the Prosecutor's submission this 
escort, as the representative of the Power which had taken the airmen 
prisoners, had the duty not only to prevent them from escaping but also of 
seeing that they were not molested. Therefore it was the duty of the escort, 
who was armed with a revolver, to protect the people in his custody. Koenen 
failed to do what his duty required him to do. In the Prosecutor's opinion, his 
guilt was, however, not as bad as the guilt of those who took an active part, 
but a person who was responsible for the safety of the prisoners and who 
deliberately stood by and merely held his rifle up to cover them while other 
people killed them, was "concerned in the killing." 

4. THE EVIDENCE 

The allegation of the Prosecution that Heyer had ordered the escort not to 
interfere in any way with the crowd if they should molest the prisoners was 
proved in evidence, and was also admitted by Heyer himself. It was 
confirmed by some German witnesses, though not admitted by Heyer, that he 
made remarks to the effect that the airmen ought to be shot or that they 
would be shot. 

One of the accused, Boddenberg, expressly admitted having hit the airmen 
with his belt. The part played by each of the others was described by one or 
more German witnesses. 

5. THE VERDICT 

Hauptmann Heyer and Private Keonen were found guilty. Two of the 
accused civilians were acquitted. The other civilians were found guilty. 

6. THE SENTENCES 

The Court sentenced Heyer to death by hanging, and Koenen to 
imprisonment for five years. 

The sentences on the three civilians who were found guilty were as follows: 

Johann Braschoss was sentenced to death by hanging. 

Karl Kaufer to imprisonment for life, and 

Hugo Boddenberg to imprisonment for ten years. 
The executions were carried out on March 8th, 1946. 



312 

DOCUMENT NO. 75 

SPECIAL PROCLAMATION BY THE SUPREME COMMANDER 

FOR THE ALLIED POWERS AT TOKYO ESTABLISHING AN 

INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST; AND 

THE TRIBUNALS [AMENDED] CHARTER 

(Tokyo, 19 January 1946, as amended 26 April 1946) 

SOURCES 
4 Bevans 20 and 27 
8 Documents on American Foreign Relations, 

1945-1946, at 353 
Judgment of the International Tribunal for 

the Far East, Annex A-4 

NOTE 
Unlike the International Military Tribunal (Nuremberg), which was 
established by an agreement negotiated and signed by the political 
representatives of the four major Allies in World War II (1939-1945), and 
which was later adhered to by the governments of 19 other Allied Powers 
(DOCUMENT NO. 68), the International Military Tribunal for the Far East 
(IMTFE) which sat in Tokyo for the trial of the major Japanese personalities 
charged with war crimes was established by proclamation of the military 
commander in Occupied Japan, the Supreme Commander for the Allied 
Powers (SCAP), General of the Army Douglas MacArthur, USA, who 
simultaneously issued an order promulgating the Tribunal's Charter. (He 
acted pursuant to the general authority delegated to him by the Moscow 
Conference Agreement of 26 December 1945. 3 Bevans 1341.) This Charter 
was subsequently superseded by an amended one which actually governed 
the Tribunal during the trial. (The amended Charter is the one given below.) 
WTiile. it is obvious that the London Charter of the International Military 
Tribunal served as the basic source for the Charter of the IMTFE, a number 
of important differences are obvious. Thus, while only France, the USSR, the 
United Kingdom, and the United States had judges on the Tribunal which sat 
at Nuremberg, the nine nations which had signed the Instrument of 
Surrender of Japan on 15 September 1945, plus India and the Philippines, all 
had judges on the IMTFE. On the other hand, while each of the four major 
Powers had a prosecutor at Nuremberg, in Tokyo the chief prosecutor, 
appointed by SCAP, was from the United States and the other 10 nations 
were only entitled to designate associate prosecutors. 

SPECIAL PROCLAMATION: 

ESTABLISHMENT OF AN INTERNATIONAL MILITARY TRIBUNAL 

FOR THE FAR EAST 

Whereas, the United States and the Nations allied therewith in opposing 
the illegal wars of aggression of the Axis Nations, have from time to time 



313 

made declarations of their intentions that war criminals should be brought to 
justice; 

Whereas, the Governments of the Allied Powers at war with Japan on the 
26th July 1945 at Potsdam, declared as one of the terms of surrender that 
stern justice shall be meted out to all criminals including those who have 
visited cruelties upon our prisoners; 

Whereas, by the Instrument of Surrender of Japan executed at Tokyo Bay, 
Japan, on the 2nd September 1945, the signatories for Japan by command of 
and in behalf of the Emperor and the Japanese Government, accepted the 
terms set forth in such Declaration at Potsdam; 

Whereas, by such Instrument of Surrender, the authority of the Emperor 
and the Japanese Government to rule the state of Japan is made subject to the 
Supreme Commander for the Allied Powers, who is authorized to take such 
steps as he deems proper to effectuate the terms of surrender; 

Whereas, the undersigned has been designated by the Allied Powers as 
Supreme Commander for the Allied Powers to carry into effect the general 
surrender of the Japanese armed forces; 

Whereas, the Governments of the United States, Great Britain and Russia 
at the Moscow Conference, 26th December 1945, having considered the 
effectuation by Japan of the Terms of Surrender, with the concurrence of 
China have agreed that the Supreme Commander shall issue all orders for the 
implementation of the Terms of Surrender. 

Now, therefore, I, Douglas Mac Arthur, as Supreme Commander for the 
Allied Powers, by virtue of the authority so conferred upon me, in order to 
implement the Terms of Surrender which requires the meting out of stern 
justice to war criminals, do order and provide as follows: 

Article 1. There shall be established an International Military Tribunal 
for the Far East for the trial of those persons charged individually, or as 
members of organizations, or in both capacities, with offenses which include 
crimes against peace. 

Article 2. The Constitution, jurisdiction and functions of this Tribunal 
are those set forth in the Charter of the International Military Tribunal for 
the Far East, approved by me this day. 

ARTICLE 3. Nothing in this Order shall prejudice the jurisdiction of any 
other international, national or occupation court, commission or other 
tribunal established or to be established in Japan or in any territory of a 
United Nation with which Japan has been at war, for the trial of war 
criminals. 

Given under my hand at Tokyo, this 19th day of January, 1946. 

Douglas MacArthur 

General of the Army, United States Army 

Supreme Commander for the Allied Powers 



314 

general headquarters 
supreme commander for the allied powers 
general orders apo 500 

no. 20 26 April 1946 

General Orders No. 1, General Headquarters, Supreme Commander for 
the Allied Powers, 19 January 1946, subject as below, is superseded. The 
Charter of the International Military Tribunal for the Far East established 
by Proclamation of the Supreme Commander for the Allied Powers, 19 
January 1946, is amended, and as amended, reads as follows: 

Charter of the International Military Tribunal 

for the Far East 

Section I 

CONSTITUTION OF TRIBUNAL 

ARTICLE 1. Tribunal Established. The International Military Tribunal for 
the Far East is hereby established for the just and prompt trial and 
punishment of the major war criminals in the Far East. The permanent seat 
of the Tribunal is in Tokyo. 

ARTICLE 2. Members. The Tribunal shall consist of not less than six 
members nor more than eleven members, appointed by the Supreme 
Commander for the Allied Powers from the names submitted by the 
Signatories to the Instrument of Surrender, India, and the Commonwealth of 
the Philippines. 

ARTICLE 3. Officers and Secretariat. 

a. President. The Supreme Commander for the Allied Powers shall 
appoint a Member to be President of the Tribunal. 

b. Secretariat. 

(1) The Secretariat of the Tribunal shall be composed of a General 
Secretary to be appointed by the Supreme Commander for the Allied Powers 
and such assistant secretaries, clerks, interpreters, and other personnel as 
may be necessary. 

(2) The General Secretary shall organize and direct the work of the 
Secretariat. 

(3) The Secretariat shall receive all documents addressed to the tribunal, 
maintain the records of the Tribunal, provide necessary clerical services to 
the Tribunal and its members, and perform such other duties as may be 
designated by the Tribunal. 

ARTICLE 4. Convening and Quorum, Voting, and Absence. 

a. Convening and Quorum. When as many as six members of the Tribunal 
are present, they may convene the Tribunal in formal session. The presence 
of a majority of all members shall be necessary to constitute a quorum. 

b. Voting. All decisions and judgments of this Tribunal, including 
convictions and sentences, shall be by a majority vote of those members of the 
Tribunal present. In case the votes are evenly divided, the vote of the 
President shall be decisive. 

c. Absence. If a member at any time is absent and afterwards is able to be 
present, he shall take part in all subsequent proceedings; unless he declares in 
open court that he is disqualified by reason of insufficient familiarity with the 
proceedings which took place in his absence. 



315 
Section II 

JURISDICTION AND GENERAL PROVISIONS 
ARTICLE 5. Jurisdiction Over Persons and Offenses. The Tribunal shall 
have the power to try and punish Far Eastern war criminals who as 
individuals or as members of organizations are charged with offenses which 
include Crimes against Peace. The following acts, or any of them, are crimes 
coming within the jurisdiction of the Tribunal for which there shall be 
individual responsibility: 

a. Crimes against Peace: Namely, the planning, preparation, initiation or 
waging of a declared or undeclared war of aggression, or a war in violation of 
international law, treaties, agreements or assurances, or participation in a 
common plan or conspiracy for the accomplishment of any of the foregoing; 

b. Conventional War Crimes: Namely, violations of the laws or customs of 
war; 

c. Crimes against Humanity: Namely, murder, extermination, en- 
slavement, deportation, and other inhumane acts committed before or during 
the war, or persecutions on political or racial grounds in execution of or in 
connection with any crime within the jurisdiction of the Tribunal, whether or 
not in violation of the domestic law of the country where perpetrated. 
Leaders, organizers, instigators and accomplices participating in the 
formulation or execution of a common plan or conspiracy to commit any of the 
foregoing crimes are responsible for all acts performed by any person in 
execution of such plan. 

ARTICLE 6. Responsibility of Accused. Neither the official position, at any 
time, of an accused, nor the fact that an accused acted pursuant to order of his 
government or of a superior shall, of itself, be sufficient to free such accused 
from responsibility for any crime with which he is charged, but such 
circumstances may be considered in mitigation if the Tribunal determines 
that justice so requires. 

ARTICLE 7. Rules of Procedure. The Tribunal may draft and amend rules of 
procedure consistent with the fundamental provisions of this Charter. 

Article 8. Counsel. 

a. Chief of Counsel. The Chief of Counsel designated by the Supreme 
Commander for the Allied Powers is responsible for the investigation and 
prosecution of charges against war criminals within the jurisdiction of this 
Tribunal and will render such legal assistance to the Supreme Commander as 
is appropriate. 

b. Associate Counsel. Any United Nation with which Japan has been at 
war may appoint an Associate Counsel to assist the Chief of Counsel. 

Section III 

FAIR TRIAL FOR ACCUSED 

ARTICLE 9. Procedure for Fair Trial. In order to insure fair trial for the 
accused the following procedure shall be followed: 

a. Indictment. The indictment shall consist of a plain, concise, and 
adequate statement of each offense charged. Each accused shall be furnished, 
in adequate time for defense, a copy of the indictment, including any 



316 

amendment, and of this Charter, in a language understood by the accused. 

b. Language. The trial and related proceedings shall be conducted in 
English and in the language of the accused. Translations of documents and 
other papers shall be provided as needed and requested. 

c. Counsel for Accused. Each accused shall have the right to be 
represented by counsel of his own selection, subject to the disapproval of such 
counsel at any time by the Tribunal. The accused shall file with the General 
Secretary of the Tribunal the name of his counsel. If an accused is not 
represented by counsel and in open court requests the appointment of 
counsel, the Tribunal shall designate counsel for him. In the absence of such 
request the Tribunal may appoint counsel for an accused if in its judgment 
such appointment is necessary to provide for a fair trial. 

d. Evidence for Defense. An accused shall have the right, through himself 
or through his counsel (but not through both), to conduct his defense, 
including the right to examine any witness, subject to such reasonable 
restrictions as the Tribunal may determine. 

e. Production of Evidence for the Defense. An accused may apply in 
writing to the Tribunal for the production of witnesses or of documents. The 
application shall state where the witness or document is thought to be 
located. It shall also state the facts proposed to be proved by the witness or 
the document and the relevancy of such facts to the defense. If the Tribunal 
grants the application the Tribunal shall be given such aid in obtaining 
production of the evidence as the circumstances require. 

ARTICLE 10. Applications and Motions before Trial. All motions, 
applications, or other requests addressed to the Tribunal prior to the 
commencement of trial shall be made in writing and filed with the General 
Secretary of the Tribunal for action by the Tribunal. 

Section IV 

POWERS OF TRIBUNAL AND CONDUCT OF TRIAL 

Article 11. Powers. The Tribunal shall have the power: 

a. To summon witnesses to the trial, to require them to attend and testify, 
and to question them. 

b. To interrogate each accused and to permit comment on his refusal to 
answer any question. 

c. To require the production of documents and other evidentiary material. 

d. To require of each witness an oath, affirmation, or such declaration as is 
customary in the country of the witness, and to administer oaths. 

e. To appoint officers for the carrying out of any task designated by the 
Tribunal, including the power to have evidence taken on commission. 

ARTICLE 12. Conduct of Trial. The Tribunal shall: 

a. Confine the trial strictly to an expeditious hearing of the issues raised by 
the charges. 

b. Take strict measures to prevent any action which would cause any 
unreasonable delay and rule out irrelevant issues and statements of any kind 
whatsoever. 



317 

c. Provide for the maintenance of order at the trial and deal summarily 
with any contumacy, imposing appropriate punishment, including exclusion 
of any accused or his counsel from some or all further proceedings, but 
without prejudice to the determination of the charges. 

d. Determine the mental and physical capacity of any accused to proceed to 
trial. 

Article 13. Evidence. 

a. Admissibility. The Tribunal shall not be bound by technical rules of 
evidence. It shall adopt and apply to the greatest possible extent expeditious 
and non-technical procedure, and shall admit any evidence which it deems to 
have probative value. All purported admissions or statements of the accused 
are admissible. 

b. Relevance. The Tribunal may require to be informed of the nature of 
any evidence before it is offered in order to rule upon the relevance. 

c. Specific evidence admissible. In particular, and without limiting in any 
way the scope of the foregoing general rules, the following evidence may be 
admitted: 

(1) A document, regardless of its security classification and without proof 
of its issuance or signature, which appears to the Tribunal to have been 
signed or issued by any officer, department, agency or member of the armed 
forces of any government. 

(2) A report which appears to the Tribunal to have been signed or issued by 
the International Red Cross or a member thereof, or by a doctor of medicine 
or any medical service personnel, or by an investigator or intelligence officer, 
or by any other person who appears to the Trubunal to have personal 
knowledge of the matters contained in the report. 

(3) An affidavit, deposition or other signed statement. 

(4) A diary, letter or other document, including sworn or unsworn 
statements, which appear to the Tribunal to contain information relating to 
the charge. 

(5) A copy of a document or other secondary evidence of its contents, if the 
original is not immediately available. 

d. Judicial Notice. The Tribunal shall neither require proof of facts of 
common knowledge, nor of the authenticity of official government documents 
and reports of any nation or of the proceedings, records, and findings of 
military or other agencies of any of the United Nations. 

e. Records, Exhibits, and Documents. The transcript of the proceedings, 
and exhibits and documents submitted to the Tribunal, will be filed with the 
General Secretary of the Tribunal and will constitute part of the Record. 

ARTICLE 14. Place of Trial. The first trial will be held at Tokyo, and any 
subsequent trials will be held at such places as the Tribunal decides. 

ARTICLE 15. Course of Trial Proceedings. The proceedings at the Trial will 
take the following course: 

a. The indictment will be read in court unless the reading is waived by all 
accused. 

b. The Tribunal will ask each accused whether he pleads "guilty" or "not 



318 

guilty". 

c. The prosecution and each accused (by counsel only, if represented) may 
make a concise opening statement. 

d. The prosecution and defense may offer evidence, and the admissibility 
of the same shall be determined by the Tribunal. 

e. The prosecution and each accused (by counsel only, if represented) may 
examine each witness and each accused who gives testimony. 

f. Accused (by counsel only, if represented) may address the Tribunal. 

g. The prosecution may address the Tribunal. 

h. The Tribunal will deliver judgment and pronounce sentence. 

Section V 
Judgment and sentence 
Article 16. Penalty. The Tribunal shall have the power to impose upon an 
accused, on conviction, death, or such other punishment as shall be 
determined by it to be just. 

Article 17. Judgment and review. The judgment will be announced in 
open court and will give the reasons on which it is based. The record of the 
trial will be transmitted directly to the Supreme Commander for the Allied 
Powers for his action. Sentence will be carried out in accordance with the 
Order of the Supreme Commander for the Allied Powers, who may at any 
time reduce or otherwise alter the sentence, except to increase its severity. 
By command of General Mac Arthur: 

Richard J. Marshall 
Major General, General Staff Corps 
Chief of Staff 



319 
DOCUMENT NO. 76 

IN RE YAMASHITA 

(Supreme Court of the United States, 4 February 1946) 

SOURCE 
327 U.S. 1 

NOTE 

General Tomoyuki Yamashita, the commander of the Imperial Japanese 
armed forces in the Philippines during the 1944-1945 battle for those islands, 
was tried by a United States Military Commission sitting in Manila on a 
charge that he had failed to exercise proper control over the troops under his 
command with the result that they had committed widespread violations of 
the laws and customs of war. He was found guilty and was sentenced to death 
by hanging and the sentence was confirmed by the United States commander, 
General of the Army Douglas MacArthur (DOCUMENT NO. 71). He then 
made an application to the Supreme Court of the United States for leave to 
file a petition for writs of habeas corpus and prohibition claiming, inter alia, 
that he had not received all of the trial safeguards to which he was entitled 
under the 1929 Geneva Prisoner-of-War Convention (DOCUMENT NO. 49). 
The pertinent portion of the opinion of the Court, given below, holds that a 
prisoner of war being tried for "precapture" offenses ("war crimes") is not 
entitled to the judicial safeguards of the Convention. This decision was widely 
followed in other war crimes trials conducted by various countries after the 
cessation of the hostilities of World War II (1939-1945). This procedure did 
not meet with universal approval and the Diplomatic Conference which 
drafted the 1949 Geneva Prisoner-of-War Convention (DOCUMENT NO. 
108) adopted, with only minor editorial change, the provision recommended 
by the 1948 Stockholm Conference (see DOCUMENT NO. 98) which became 
Article 85 of the 1949 Convention. Contrary to the holding of the Supreme 
Court in the Yamashita Case, Article 85 preserves to the prisoner of war 
being tried for a precapture offense all of the benefits of the Convention, both 
prior to and during trial, and even after conviction. (According to the Soviet 
Union, its reservation to this article was not intended to remove the prisoner 
of war from the protection of the Convention until he has actually been 
convicted of a war crime and the conviction has become final (DOCUMENT 
NO. 109).) The opinion is also notable for its holding that a military com- 
mander is personally responsible for the criminal misconduct of the members 
of his command directed against protected persons, including prisoners of 
war, if he fails to take the necessary steps to prevent such misconduct before 
it occurs, and to bring it to a halt and to punish offenders if it does occur. (To 
the same effect, see DOCUMENT NO. 101.) Articles 86 and 87 of the 1977 
Protocol I (DOCUMENT NO. 175) are the most recent attempts to deal with 
this problem. 

EXTRACTS 
Mr. Chief Justice Stone delivered the opinion of the Court: 
The charge. Neither congressional action nor the military orders 



320 

constituting the commission authorized it to place petitioner on trial unless 
the charge preferred against him is of a violation of the law of war. The 
charge, so far as now relevant, is that petitioner, between October 9, 1944 
and September 2, 1945, in the Philippine Islands, "while commander of armed 
forces of Japan at war with the United States of America and its allies, 
unlawfully disregarded and failed to discharge his duty as commander to 
control the operations of the members of his command, permitting them to 
commit brutal atrocities and other high crimes against people of the United 
States and of its allies and dependencies, particularly the Philippines; and he 
. . . thereby violated the laws of war." 

Bills of particulars, filed by the prosecution by order of the commission, 
allege a series of acts, one hundred and twenty-three in number, committed 
by members of the forces under petitioner's command during the period 
mentioned. The first item specifies the execution of a "deliberate plan and 
purpose to massacre and exterminate a large part of the civilian population of 
Batangas Province, and to devastate and destroy public, private and 
religious property therein, as a result of which more than 25,000 men, women 
and children, all unarmed noncombatant civilians, were brutally mistreated 
and killed, without cause or trial, and entire settlements were devastated and 
destroyed wantonly and without military necessity." Other items specify acts 
of violence, cruelty and homicide inflicted upon the civilian population and 
prisoners of war, acts of wholesale pillage and the wanton destruction of 
religious monuments. 

It is not denied that such acts directed against the civilian population of an 
occupied country and against prisoners of war are recognized in international 
law as violations of the law of war. Articles 4, 28, 46, and 47, Annex to the 
Fourth Hague Convention, 1907, 36 Stat. 2277, 2296, 2303, 2306-7. But it is 
urged that the charge does not allege that petitioner has either committed or 
directed the commission of such acts, and consequently that no violation is 
charged as against him. But this overlooks the fact that the gist of the charge 
is an unlawful breach of duty by petitioner as an army commander to control 
the operations of the members of his command by "permitting them to 
commit" the extensive and widespread atrocities specified. The question then 
is whether the law of war imposes on an army commander a duty to take such 
appropriate measures as are within his power to control the troops under his 
command for the prevention of the specified acts which are violations of the 
law of war and which are likely to attend the occupation of hostile territory by 
an uncontrolled soldiery, and whether he may be charged with personal 
responsibility for his failure to take such measures when violations result. 
That this was the precise issue to be tried was made clear by the statement of 
the prosecution at the opening of the trial. 

It is evident that the conduct of military operations by troops whose 
excesses are unrestrained by the orders or efforts of their commander would 
almost certainly result in violations which it is the purpose of the law of war to 
prevent. Its purpose to protect civilian populations and prisoners of war from 
brutality would largely be defeated if the commander of an invading army 



321 

could with impunity neglect to take reasonable measures for their protection. 
Hence the law of war presupposes that its violation is to be avoided through 
the control of the operations of war by commanders who are to some extent 
responsible for their subordinates. 

This is recognized by the Annex to the Fourth Hague Convention of 1907, 
respecting the laws and customs of war on land. Article 1 lays down as a 
condition which an armed force must fulfill in order to be accorded the rights 
of lawful belligerents, that it must be "commanded by a person responsible 
for his subordinates." 36 Stat. 2295. Similarly Article 19 of the Tenth Hague 
Convention, relating to bombardment by naval vessels, provides that 
commanders in chief of the belligerent vessels "must see that the above 
Articles are property carried out." 36 Stat. 2389. And Article 26 of the 
Geneva Red Cross Convention of 1929, 47 Stat. 2074, 2092, for the 
amelioration of the condition of the wounded and sick in armies in the field, 
makes it "the duty of the commanders-in-chief of the belligerent armies to 
provide for the details of execution of the foregoing articles, [of the 
convention] as well as for unforseen cases ..." And, finally, Article 43 of the 
Annex of the Fourth Hague Convention, 36 Stat. 2306, requires that the 
commander of a force occupying enemy territory, as was petitioner, "shall 
take all the measures in his power to restore, and ensure, as far as possible, 
public order and safety, while respecting, unless absolutely prevented, the 
laws in force in the country." 

These provisions plainly imposed on petitioner, who at the time specified 
was military governor of the Philippines, as well as commander of the 
Japanese forces, an affirmative duty to take such measures as were within his 
power and appropriate in the circumstances to protect prisoners of war and 
the civilian population. This duty of a commanding officer has heretofore been 
recognized, and its breach penalized by our own military tribunals. A like 
principle has been applied so as to impose liability on the United States in 
international arbitrations. Case of Jeannaud, 3 Moore, International 
Arbitrations, 3000; Case of The Zafiro, 5 Hackworth, Digest of International 
Law, 707. 

We do not make the laws of war but we respect them so far as they do not 
conflict with the commands of Congress or the Constitution. There is no 
contention that the present charge, thus read, is without the support of 
evidence, or that the commission held petitioner responsible for failing to 
take measures which were beyond his control or inappropriate for a 
commanding officer to take in the circumstances. We do not here appraise the 
evidence on which petitioner was convicted. We do not consider what 
measures, if any, petitioner took to prevent the commission, by the troops 
under his command, of the plain violations of the law of war detailed in the bill 
of particulars, or whether such measures as he may have taken were 
appropriate and sufficient to discharge the duty imposed upon him. These are 
questions within the peculiar competence of the military officers composing 
the commission and were for it to decide. See Smith v. Whitney, 116 U.S. 167, 
178. It is plain that the charge on which petitioner was tried charged him with 



322 

a breach of his duty to control the operations of the members of his command, 
by permitting them to commit the specified atrocities. This was enough to 
require the commission to hear evidence tending to establish the culpable 
failure of petitioner to perform the duty imposed on him by the law of war and 
to pass upon its sufficiency to establish guilt. 

Obviously charges of violations of the law of war triable before a military 
tribunal need not be stated with the precision of a common law indictment. 
Cf. Collins v. McDonald, supra, 420. But we conclude that the allegations of 
the charge, tested by any reasonable standard, adequately allege a violation 
of the law of war and that the commission had authority to try and decide the 
issue which it raised. Cf. Dealy v. United States, 152 U.S. 539; Williamson v. 
United States, 207 U.S. 425, 447; Glasser v. United States, 315 U.S. 60, 66, 
and cases cited. 

The proceedings before the commission. The regulations prescribed by 
General Mac Arthur governing the procedure for the trial of petitioner by the 
commission directed that the commission should admit such evidence "as in 
its opinion would be of assistance in proving or disproving the charge, or such 
as in the commission's opinion would have probative value in the mind of a 
reasonable man," and that in particular it might admit affidavits, depositions 
or other statements taken by officers detailed for that purpose by military 
authority. The petitions in this case charged that in the course of the trial the 
commission received, over objection by petitioner's counsel, the deposition of 
a witness taken pursuant to military authority by a United States Army 
captain. It also, over like objection, admitted hearsay and opinion evidence 
tendered by the prosecution. Petitioner argues, as ground for the writ of 
habeas corpus, that Article 25 of the Articles of War prohibited the reception 
in evidence by the commission of depositions on behalf of the prosecution in a 
capital case, and that Article 38 prohibited the reception of hearsay and of 
opinion evidence. 

We think that neither Article 25 nor Article 38 is applicable to the trial of an 
enemy combatant by a military commission for violations of the law of war. 
Article 2 of the Articles of War enumerates "the persons . . . subject to these 
articles," who are denominated, for purposes of the Articles, as "persons 
subject to military law." In general, the persons so enumerated are members 
of our own Army and of the personnel accompanying the Army. Enemy 
combatants are not included among them. Articles 12, 13 and 14, before the 
adoption of Article 15 in 1916, made all "persons subject to military law" 
amenable to trial by courts-martial for any offense made punishable by the 
Articles of War. Article 12 makes triable by general court-martial "any other 
person who by the law of war is subject to trial by military tribunals." Since 
Article 2, in its 1916 form, includes some persons who, by the law of war, 
were, prior to 1916, triable by military commission, it was feared by the 
proponents of the 1916 legislation that in the absence of a saving provision, 
the authority given by Articles 12, 13 and 14 to try such persons before 
courts-martial might be construed to deprive the non-statutory military 
commission of a portion of what was considered to be its traditional 



323 



jurisdiction. To avoid this, and to preserve that jurisdiction intact, Article 15 
was added to the Articles. It declared that "The provisions of these articles 
conferring jurisdiction upon courts-martial shall not be construed as 
depriving military commissions ... of concurrent jurisdiction in respect of 
offenders or offenses that ... by the law of war may be triable by such 
military commissions." 

By thus recognizing military commissions in order to preserve their 
traditional jurisdiction over enemy combatants unimpaired by the Articles, 
Congress gave sanction, as we held in Ex parte Quirin, to any use of the 
military commission contemplated by the common law of war. But it did not 
thereby make subject to the Articles of War persons other than those defined 
by Article 2 as being subject to the Articles, nor did it confer the benefits of 
the Articles upon such persons. The Articles recognized but one kind of 
military commission, not two. But they sanctioned the use of that one for the 
trial of two classes of persons, to one of which the Articles do, and to the other 
of which they do not, apply in such trials. Being of this latter class, petitioner 
cannot claim the benefits of the Articles, which are applicable only to the 
members of the other class. Petitioner, an enemy combatant, is therefore not 
a person made subject to the Articles of War by Article 2, and the military 
commission before which he was tried, though sanctioned, and its jurisdiction 
saved, by Article 15, was not convened by virtue of the Articles of War, but 
pursuant to the common law of war. It follows that the Articles of War, 
including Articles 25 and 38, were not applicable to petitioner's trial and 
imposed no restrictions upon the procedure to be followed. The Articles left 
the control over the procedure in such a case where it had previously been, 
with the military command. 

Petitioner further urges that by virtue of Article 63 of the Geneva 
Convention of 1929, 47 Stat. 2052, he is entitled to the benefits afforded by the 
25th and 38th Articles of War to members of our own forces. Article 63 
provides: "Sentence may be pronounced against a prisoner of war only by the 
same courts and according to the same procedure as in the case of persons 
belonging to the armed forces of the detaining Power." Since petitioner is a 
prisoner of war, and as the 25th and 38th Articles of War apply to the trial of 
any person in our own armed forces, it is said that Article 63 requires them to 
be applied in the trial of petitioner. But we think examination of Article 63 in 
its setting in the Convention plainly shows that it refers to sentence 
"pronounced against a prisoner of war" for an offense committed while a 
prisoner of war, and not for a violation of the law of war committed while a 
combatant. 

Article 63 of the Convention appears in part 3, entitled "Judicial Suits," of 
Chapter 3, "Penalties Applicable to Prisoners of War," of § V, "Prisoners' 
Relations with the Authorities," one of the sections of Title III, "Captivity." 
All taken together relate only to the conduct and control of prisoners of war 
while in captivity as such. Chapter 1 of § V, Article 42 deals with complaints of 
prisoners of war because of the conditions of captivity. Chapter 2, Articles 43 
and 44, relates to those of their number chosen by prisoners of war to 



324 

represent them. 

Chapter 3 of § V, Articles 45 through 67, is entitled "Penalties Applicable to 
Prisoners of War." Part 1 of that chapter, Articles 45 through 53, indicate 
what acts of prisoners of war, committed while prisoners, shall be considered 
offenses, and defines to some extent the punishment which the detaining 
power may impose on account of such offenses. Punishment is of two kinds — 
"disciplinary" and "judicial," the latter being the more severe. Article 52 
requires that leniency be exercised in deciding whether an offense requires 
disciplinary or judicial punishment. Part 2 of Chapter 3 is entitled 
"Disciplinary Punishments," and further defines the extent of such pun- 
ishment, and the mode in which it may be imposed. Part 3, entitled "Judicial 
Suits," in which Article 63 is found, describes the procedure by which 
"judicial" punishment may be imposed. The three parts of Chapter 3, taken 
together, are thus a comprehensive description of the substantive offenses 
which prisoners of war may commit during their imprisonment, of the 
penalties which may be imposed on account of such offenses, and of the 
procedure by which guilt may be adjudged and sentence pronounced. 

We think it clear, from the context of these recited provisions, that part 3, 
and Article 63, which it contains, apply only to judicial proceedings directed 
against a prisoner of war for offenses committed while a prisoner of war. 
Section V gives no indication that this part was designed to deal with offenses 
other than those referred to in parts 1 and 2 of Chapter 3. 

Effect of failure to give notice of the trial to the protecting power. Article 60 
of the Geneva Convention of July 27, 1929, 47 Stat. 2051, to which the United 
States and Japan were signatories, provides that "At the opening of a judicial 
proceeding directed against a prisoner of war, the detaining Power shall 
advise the representative of the protecting Power thereof as soon as possible, 
and always before the date set for the opening of the trial." Petitioner relies 
on the failure to give the prescribed notice to the protecting power to 
establish want of authority in the commission to proceed with the trial. 

For reasons already stated we conclude that Article 60 of the Geneva 
Convention, which appears in part 3, Chapter 3, § V, Title III of the Geneva 
Convention, applies only to persons who are subjected to judicial proceedings 
for offenses committed while prisoners of war. 

It thus appears that the order convening the commission was a lawful 
order, that the commission was lawfully constituted, that petitioner was 
charged with violation of the law of war, and that the commission had 
authority to proceed with the trial, and in doing so did not violate any 
military, statutory or constitutional command. We have considered, but find 
it unnecessary to discuss, other contentions which we find to be without 
merit. We therefore conclude that the detention of petitioner for trial and his 
detention upon his conviction, subject to the prescribed review by the 
military authorities, were lawful, and that the petition for certiorari, and 
leave to file in this Court petitions for writs of habeas corpus and prohibition 
should be, and they are 

Denied. 



325 

Rutledge, J., dissenting: 

The Geneva Convention of 1929. 

If the provisions of Articles 25 and 38 were not applicable to the proceeding 
by their own force as Acts of Congress, I think they would still be made 
applicable by virtue of the terms of the Geneva Convention of 1929, in 
particular Article 63. And in other respects, in my opinion, the petitioner's 
trial was not in accord with that treaty, namely, with Article 60. 

The Court does not hold that the Geneva Convention is not binding upon 
the United States and no such contention has been made in this case. It relies 
on other arguments to show that Article 60, which provides that the 
protecting power shall be notified in advance of a judicial proceeding directed 
against a prisoner of war, and Article 63, which provides that a prisoner of 
war may be tried only by the same courts and according to the same 
procedure as in the case of persons belonging to the armed forces of the 
detaining power, are not properly invoked by the petitioner. Before 
considering the Court's view that these Articles are not applicable to this 
proceeding by their terms, it may be noted that on his surrender petitioner 
was interned in conformity with Article 9 of this Convention. 

The chief argument is that Articles 60 and 63 have reference only to 
offenses committed by a prisoner of war while a prisoner of war and not to 
violations of the laws of war committed while a combatant. This conclusion is 
derived from the setting in which these Articles are placed. I do not agree 
that the context gives any support to this argument. The argument is in 
essence of the same type as the argument the Court employs to nullify the 
application of Articles 25 and 38 of the Articles of War by restricting their 
own broader coverage by reference to Article 2. 

Neither Article 60 nor Article 63 contains such a restriction of meaning as 
the Court reads into them. In the absence of any such limitation, it would 
seem that they were intended to cover all judicial proceedings, whether 
instituted for crimes allegedly committed before capture or later. Policy 
supports this view. For such a construction is required for the security of our 
own soldiers, taken prisoner, as much as for that of prisoners we take. And 
the opposite one leaves prisoners of war open to any form of trial and 
punishment for offenses against the laws of war their captors may wish to 
use, while safeguarding them, to the extent of the treaty limitations, in cases 
of disciplinary offense. This, in many instances, would be to make the treaty 
strain at a gnat and swallow the camel. 

The United States has complied with neither of these Articles. It did not 
notify the protecting power of Japan in advance of trial as Article 60 requires 
it to do, although the supplemental bill charges the same failure to petitioner 
in Item 89. It is said that, although this may be true, the proceeding is not 
thereby invalidated. The argument is that our noncompliance merely gives 
Japan a right of indemnity against us and that Article 60 was not intended to 
give Yamashita any personal rights. I cannot agree. The treaties made by the 
United States are by the Constitution made the supreme law of the land. In 
the absence of something in the treaty indicating that its provisions were not 



326 

intended to be enforced, upon breach, by more than subsequent indem- 
nification, it is, as I conceive it, the duty of the courts of this country to insure 
the nation's compliance with such treaties, except in the case of political 
questions. This is especially true where the treaty has provisions — such as 
Article 60 — for the protection of a man being tried for an offense the 
punishment for which is death; for to say that it was intended to provide for 
enforcement of such provisions solely by claim, after breach, of indemnity 
would be in many instances, especially those involving trial of nationals of a 
defeated nation by a conquering one, to deprive the Articles of all force. 
Executed men are not much aided by post-war claims for indemnity. I do not 
think the adhering powers' purpose was to provide only for such ineffective 
relief. 

Finally, the Government has argued that Article 60 has no application after 
the actual cessation of hostilities, as there is no longer any need for an 
intervening power between the two belligerents. The premise is that Japan 
no longer needs Switzerland to intervene with the United States to protect 
the rights of Japanese nationals, since Japan is now in direct communication 
with this Government. This of course is in contradiction of the Government's 
theory, in other connections, that the war is not over and military necessity 
still requires use of all the power necessary for actual combat. 

Furthermore the premise overlooks all the realities of the situation. Japan 
is a defeated power, having surrendered, if not unconditionally then under 
the most severe conditions. Her territory is occupied by American military 
forces. She is scarcely in a position to bargain with us or to assert her rights. 
Nor can her nationals. She no longer holds American prisoners of war. 
Certainly, if there was the need of an independent neutral to protect her 
nationals during the war, there is more now. In my opinion the failure to give 
the notice required by Article 60 is only another instance of the commission's 
failure to observe the obligations of our law. 

What is more important, there was no compliance with Article 63 of the 
same Convention. Yamashita was not tried "according to the same procedure 
as in the case of persons belonging to the armed forces of the detaining 
Power." Had one of our soldiers or officers been tried for alleged war crimes, 
he would have been entitled to the benefits of the Articles of War. I think that 
Yamashita was equally entitled to the same protection. In any event, he was 
entitled to their benefits under the provisions of Article 63 of the Geneva 
Convention. Those benefits he did not receive. Accordingly, his trial was in 
violation of the Convention. 



327 

DOCUMENT NO. 77 

TRIAL OF KARL AMBERGER 
(THE DREIERWALDE CASE) 

(British Military Court, Wuppertal, Germany, 14 March 1946) 

SOURCES 

1LRTWC81 

13 Ann. Dig. 291 

NOTE 

This was one of a number of cases involving the shooting of prisoners of war 
in which the defense asserted was that they had been shot "while attempting 
to escape." While the issue presented is thus one of fact, it should be noted 
that it is one frequently raised and one in which there are usually no survivors 
to give an eyewitness account for the prosecution. 

EXTRACTS 

2. THE CHARGE 

The accused, Karl Amberger (formerly Oberfeldwebel), a German 
National, was charged with "Committing a War Crime in that he at 
Dreierwalde Aerodrome on or about 22nd March, 1945, in violation of the 
laws and usages of War, was concerned in the killing of . . . (two members of 
the Royal Australian Air Force and two members of the Royal Air Force) 
. . ., allied Prisoners of War." 

In his closing speech the Prosecutor stated that the legal basis of the charge 
lay in Article 23 (c) of the Hague Rules of 1907, which bound both the German 
and the British Governments. This laid down that "In addition to the 
prohibitions provided by special Conventions it is particularly forbidden: (c) 
to kill or wound any enemy who, having laid down his arms, no longer having 
means of defence, has surrendered at discretion." 

3. THE CASE AND EVIDENCE FOR THE PROSECUTION 

The Prosecutor opened his case by stating that Karl Amberger was acting 
on the relevant date in March, 1945, as senior instructing warrant officer at 
the Aerodrome between the villages of Hopsten and Dreierwalde. During a 
severe air raid made in the vicinity of the Aerodrome on the 21st March, 1945, 
the four deceased allied prisoners of war, together with Flight-Lieutenant 
Berick of the Royal Australian Air Force, were forced to bale out, and were 
on capture taken to the Aerodrome. Towards the evening of the 22nd March, 
a party, consisting of Amberger in charge, and two German N.C.O.s, set off 
ostensibly to conduct the five prisoners of war to a railway station for the 
purpose of taking them to a Prisoner of War camp or Interrogation Centre. 
After going about a mile and a half the party turned on to a track leading into a 
wood. Here, despite the fact that the prisoners were proceeding with 
decorum, the three N.C.O.s, including Amberger, began firing on them. All 
were killed except Flight-Lieutenant Berick, who escaped, though wounded. 
The case for the Prosecution was that the prisoners made no attempt to 



328 

escape, and that the shooting was cold and calculated murder. 

It had proved impossible to bring F/Lt. Berick from Australia to attend the 
trial, but two sworn affidavits made by him were submitted. 

In these, he stated, inter alia, that, as the prisoners were proceeding along 
the track in the wood five abreast, having been ordered to do so, they "heard a 
click" behind them; F/Lt. Berick looked round and saw one of the guards 
cocking the action of his Schmeizer. All three had their weapons at the ready. 
The firing then began. 

Authenticated photostatic reproductions of two photographs, which F/Lt. 
Berick maintained that he had subsequently taken at the scene of the 
shooting, were also submitted to the Court. 

Werner Lauter (formerly Oberfeldwebel), a witness, stated that he was 
acting at the Aerodrome in March, 1945, as the Chief Clerk of the 
Kommandatur. He claimed that Amberger had volunteered to do the escort 
duty and had detailed the other N.C.O.s from his own unit. Lauter 
maintained that he had heard remarks made by the accused to this effect: "I 
shall finish off these Allied P.O.W.s, these Allied Airmen." The witness had 
therefore been so doubtful as to the fitness of Amberger for the task that he 
had communicated his doubts to the Adjutant. It had proved impossible, 
however, to find a substitute for Amberger. 

An authenticated photostatic reproduction of an affidavit of Joachim 
Erdmann, clerk of the Aerodrome in March, 1945, was then submitted. 
Extensive efforts to find the witness had failed. His evidence was, inter alia, 
that, on 22nd March, 1945, on returning with a girl, Elfriede Nicklas, from a 
walk, he passed the five prisoners and certain German N.C.O.s, on a track 
leading into some woods. After he and the girl had walked about 300 yards 
past the party, they heard firing from the direction in which it had gone. 

Elfriede Nicklas, a German national, identified Amberger as being one of 
the guard party. She testified that the prisoners were quite disciplined as 
they passed, and claimed that Erdmann had said that N.C.O.s in the 
Aerodrome had been asked to volunteer to shoot the prisoners. After the 
shooting, Erdmann, she claimed, had told her that it was to have taken place 
at a spot further along the route, and not where it actually did happen. 

As a result of F/Lt. Berick's complaint on finally returning to England, 
Major William Davidson, R.A.M.C., a pathologist, proceeded to Dreierwalde 
Cemetery, where he exhumed a grave and found four bodies which he 
identified as being those of the prisoners. All four had been shot through the 
head. His report was submitted to the Court. 

4. THE CASE AND EVIDENCE FOR THE DEFENCE 

The accused pleaded not guilty. 

Giving evidence himself as a witness on oath, Amberger denied having 
volunteered for escort duty or having made remarks hostile to prisoners of 
war. He had himself decided that the party should proceed through the woods 
instead of by the road way, since thus there would be less danger of meeting 
civilians. Feeling among the civilians was high due to Allied air-raids. He 
maintained that the prisoners were certainly marching abreast immediately 



329 

before the alleged attempt to escape, but that he had not ordered them to do 
so. Amberger claimed that he saw the prisoners talking to one another in a 
suspicious way, and taking their bearings from canal bridges and from the 
stars. He had therefore honestly believed that they were going to attempt to 
escape. In the failing light four of the prisoners had then tried to escape in 
various directions, while the fifth had attacked him. 

There were no other witnesses for the defence. 

The defending Counsel did not deny the shooting of the four airmen, but 
asked the Court to believe that "there was an attempt to escape, or what 
appeared to be an attempt to escape which, in the contention of the defence, 
means the same thing." 

The defending Counsel, in his closing speech, attempted to reconcile F/Lt. 
Berick's statement that no attempt had been made to escape with 
Amberger's evidence to the contrary, by saying that the cocking of the action 
of a weapon by one guard was not unnatural given the fact that five prisoners 
had to be guarded in a lane in the growing dusk. Having previously suffered 
ill-treatment, Berick and the other prisoners probably regarded it as likely 
that they were to be shot, as others in their position had been, and began to 
run when it was not necessary for them to do so. 

5. THE VERDICT 

The accused was found guilty of the charge, subject to confirmation by the 
Superior Military Authority. 

6. THE SENTENCE 

Counsel for the Defence, pleading in mitigation on behalf of Amberger, 
asked the Court to take into account the latter' s previous record as a brave, 
responsible soldier. He may have considered that the airmen in his hands 
were responsible for the attack, which killed around 40 civilians and airmen 
on the airfield at Dreierwalde, and that he was justified in acting as judge over 
the acts of these men. 

Nevertheless, the accused was sentenced to death by hanging. The 
sentence was confirmed and carried out on 15th May, 1946. 



330 

DOCUMENT NO. 78 

TRIAL OF LIEUTENANT GENERAL SHIGERU 
SAWADA AND THREE OTHERS 

(U.S. Military Commission, Shanghai, 15 April 1946) 

SOURCE 
5 LRTWC 1 

NOTE 

This is one of the post- World War II (1941-1945) war crimes trials in which 
the accused were charged with denying a fair trial to prisoners of war. (See 
also DOCUMENT NO. 101) (under the rubric "Murder of Captured 
Aviators.") The victims here were eight of the "Doolittle" fliers who had 
bombed Japan proper on 18 April 1942 and then had made forced landings and 
had been captured by the Japanese. They were tried under a subsequently 
enacted law for allegedly having attacked non-military targets. 

EXTRACTS 

1. THE CHARGES 

The charge against Major-General Shigeru Sawada, formerly Com- 
manding General of the Japanese Imperial 13th Expeditionary Army in 
China, was that, on or about August, 1942, he did "at or near Shanghai, 
China, knowingly, unlawfully and wilfully and by his official acts cause" eight 
named members of the United States forces "to be denied the status of 
Prisoners of War and to be tried and sentenced by a Japanese Military 
Tribunal in violation of the laws and customs of war." 

It was also charged that the second and third accused, Second-Lieutenant 
Okada Ryuhei and Lieutenant Wako Yusei, both of the Japanese Imperial 
13th Expeditionary Army in China, as members of a Japanese Military 
Tribunal, "did at Kiangwan Military Prison, Shanghai, China, knowingly, 
unlawfully and wilfully try, prosecute and adjudge" the eight members of the 
United States forces "to be put to death in violation of the laws and customs of 
war." 

Finally, a charge was brought against Tatsuta Sotojiro, Captain in the 
Japanese Imperial 13th Expeditionary Army in China, stating that he "did at 
Shanghai, China, knowingly, unlawfully and wilfully command and execute 
an unlawful Order of a Japanese Military Tribunal, and did thereby ctiuse the 
death of 'three of the victims' who were lawfully and rightfully Prisoners of 
War" and in his capacity as "Commanding Officer of the Kiangwan Military 
Prison, Shanghai, China" did between 28th August, 1942 and 17th April, 
1943, at Kiangwan Military Prison, "deny the status of Prisoners of War to" 
all eight, in violation of the laws and customs of war. 

The accused pleaded not guilty. 

In greater detail the allegations made by the Prosecution concerned the 
following acts of commission and omission: 

(i) That Sawada, as commanding general of the 13th Japanese Army in 



331 

China, caused the eight captured American fliers to be tried and 
sentenced to death by a Japanese military tribunal on false, and 
fraudulent charges; that he had the power to commute, remit and 
revoke such sentences and failed to do so, thereby causing the 
unlawful death of four of the fliers and the imprisonment of the 
others; that he was responsible for the improper treatment of all the 
captured airmen, having denied them the lawful status of prisoners 
of war; that in addition, he was responsible for the cruel and brutal 
atrocities and other offences, including the denial of proper food, 
clothing, medical care and shelter, committed against one of the 
eight. 

(ii) That the two accused Okada and Wako unlawfully tried and 
adjudged the eight fliers under false and fraudulent charges without 
affording them a fair trial, interpretation of the proceedings, 
counsel, or an opportunity to defend, and sentenced them to death. 

(iii) That Tatsuta commanded and executed an unlawful order of a 
Japanese military tribunal which caused the death of three of the 
fliers, and that as commanding officer of Kiangwan Military Prison 
he forcibly detained all eight in solitary confinement and otherwise 
unlawfully treated them by denying them adequate and proper 
shelter, bedding, food, water, sanitary facilities, clothing, medical 
care and other essential facilities. 

2. THE EVIDENCE 

Eight United States airmen, after taking part in a bombing raid on a 
Japanese steel mill, an oil refinery and an aircraft factory on 18th April, 1942, 
were forced to earth and captured by the Japanese and eventually held in 
Tokyo for about fifty-two days, during which time they were imprisoned in 
solitary confinement. There was evidence that, both during their period in 
Tokyo and previously, they were subjected to various forms of torture during 
interrogations. 

On 28th August, 1942, after spending approximately seventy further days 
at the Bridge House Jail, Shanghai, in small verminous and insanitary cells, 
all eight fliers were removed to the Kiangwan Military Prison, on the 
outskirts of Shanghai. At the time of their transfer, all the fliers were weak 
and underweight and one was very ill. On arriving, they were assembled in a 
room before several Japanese officers, who, they later learned, constituted 
their court-martial. The accused Wako and Okado were among the members 
of the court. The accused Tatsuta attended the trial voluntarily and not 
officially, as a spectator, for a short time. The fliers stood before the Japanese 
officers who conversed in their own language. The sick prisoner was carried 
in on a stretcher where he continued to lie during the proceedings. He was ill 
but was not attended by a doctor or a nurse. He did not, by his eyes or facial 
expression, appear to recognize the others; nor did he make any statements. 
The fliers were asked a few questions about their life histories, their schooling 
and training. After they answered, one of the Japanese stood up and read 
from a manuscript in Japanese. The fliers made no other statement. There 



332 

was an interpreter present, but he did not interpret anything except the 
fliers' names and ranks, and similar details. The proceedings lasted about two 
hours at the very most. The fliers were not told that they were being tried; 
they were not advised of any charges against them; they were not given any 
opportunity to plead, either guilty or not guilty; they were not asked (nor did 
they say anything) about their bombing mission. No witnesses appeared at 
the proceedings; the fliers themselves did not see any of the statements 
utilized by the court that they had previously made at Tokyo; they were not 
represented by counsel; no reporter was present; and to their knowledge no 
evidence was presented against them. 

Prior to the trial, a draft of a Japanese law concerning the punishment of 
captured enemy airmen was sent from higher headquarters at Tokyo to the 
Headquarters of the China Expeditionary Forces in Nanking in July, 1942, 
and at the same time Tokyo requested the 13th Japanese Army Headquarters 
to defer its trial of the eight American fliers until the new military law had 
been enacted. Soon afterwards the supreme commander at Nanking (General 
Hata) issued this "Enemy Airmen's Act" to the 13th Army. This law stated in 
substance that it should take effect on 13th August, 1942 and be applied to all 
enemy airmen taking part in raids against Japanese territories; that any one 
who should participate in the bombing or strafing of non-military targets or 
who should participate in any other violation of international law would be 
sentenced to death, which sentence might be commuted to life imprisonment 
or to a term of imprisonment not less than ten years; and that imprisonment 
under the Act would be in accordance with the provisions of Japanese 
criminal law. A staff officer from Tokyo was sent to China to give instructions 
regarding the trial of the fliers and to demand that General Hata have the 
prosecutor require the death sentence and report the court's decision to 
Tokyo. 

The evidence of the accused Sawada, Okada, and Wako showed that only a 
permissive death sentence existed under Japanese law prior to the enactment 
of the Enemy Airmen's Act. 

The defence in the United States trial contended that the Japanese court 
was regularly appointed and consisted of Major Itsuro Hata as prosecutor, 
Lieutenant-Colonel Toyoma Nakajo, as chief judge, and the two accused, 
Wako and Okada, as associate judges; that the proceedings in the trial of the 
fliers on 28th August, 1942, did not differ from the regular proceedings of 
other Japanese trials; that no pleadings were authorized by Japanese law; and 
that no defence counsel were authorized. Further contentions by the defence 
were that the court proceedings lasted at least two hours; that documentary 
evidence, consisting of at least the gist of the air raid damage reports from 
Tokyo and the fliers' alleged confessions made to the Tokyo Gendarmerie 
admitting attacks on non-military targets, were read to the court. (The 
accused Wako, however, denied this). 

Although these purported confessions were supposed to have had the 
signatures and thumb prints of the several American fliers on them, there is 
no evidence that any attempt was made to verify or prove that these were 



333 

genuine or actually those of the fliers. After a two hour session the court 
adjourned for lunch, and then deliberated for another hour and unanimously 
decided on the death sentences for all eight fliers. There was some evidence 
that a record of the trial proceedings was made at the trial, and either was 
filed with the 13th Army or was transferred to Headquarters at Tokyo in 
December 1944, where it was destroyed in a fire. 

After the trial a telegram was sent to Tokyo through Nanking announcing 
the sentence of the court, and later a written report was sent. Headquarters 
of the 13th Army had been instructed to withhold any action on the sentences 
until Tokyo acted on them. Later instructions were received from Tokyo to 
execute three of the victims, including the prisoner who had been ill 
throughout the trial. The sentences passed on the other five were commuted 
to life imprisonment. 

The executions were carried out on 15th October, 1942. The five surviving 
fliers were returned to confinement in the Kiangwan prison. 

The accused General Sawada was in command of the 13th Army, with 
headquarters at Shanghai, at the time when the fliers were captured. He 
remained in command until he received orders relieving him on 8th October, 
1942 or thereabouts. From 7th May, 1942 until 17th September, 1942 
Sawada, though still the Commanding General of the 13th Army with his 
heaquarters functioning for him at Shanghai, was absent at the front about 
three hundred miles away. Nevertheless, though he was not in Shanghai at 
the time of the trial, the tribunal that sentenced the fliers was appointed 
under his command authority as Commanding General of the 13th Army. 
Colonel Ito, Sawada's chief legal officer, did not accompany Sawada to the 
front but remained behind at Headquarters with Sawada's delegated 
authority to act for him on all legal matters, and the authority to use General 
Sawada's name was given him prior to the former's departure for the front. 

On General Sawada's return to Shanghai on the 17th September, 1942, 
after the trial of the fliers which took place in his absence, he was personally 
informed of all the proceedings involving the fliers that took place during his 
absence. Colonel Ito informed General Sawada of the proceedings he had 
directed under his delegated authority before trial, during the trial, and 
immediately following the trial and told him that a report thereof had been 
sent on to Tokyo. He also gave Sawada a copy of the record of the trial and the 
"statement of judgment," and Sawada placed his own mark thereon. Sawada 
stated that he felt that the death sentences were too severe and went to 
Nanking and protested to the Commanding General of the China Forces but 
that he, General Hata, said that nothing could be done about the matter as it 
was exclusively up to Tokyo to make a decision. Thereafter, General Sawada 
did not make further attempts to have the sentences changed. The accused 
General Sawada, prior to his leaving Shanghai on 12th October, 1942, made 
no attempt to exercise any powers with respect to suspension, remission or 
mitigation of the sentences given by the court. Sawada stated that he did not 
have the authority to do so or to disapprove any of the court's proceedings. 
Sawada testified that he personally was familiar with the rules of the Geneva 



334 

Convention on the treatment of prisoners of war, and that whatever Colonel 
Ito did in connection with the American fliers, he, Sawada, assumed 
responsibility for. Sawada stated in evidence that he had jurisdiction over 
Kiangwan Prison. He admitted that although this prison was only three 
hundred yards from his personal headquarters he never went inside it or 
concerned himself about its prisoners. 

The accused Lieutenant Yusei Wako was an officer in the judicial 
department of the Japanese Army and was assigned to the judicial 
department of the 13th Army in Shanghai in May, 1942. His immediate 
superior was Colonel Ito, the head of the legal department of the 13th Army. 
Wako, who was a lawyer, was told by Colonel Ito that he (Wako) would be a 
judge in the trial of the fliers and that the trial was considered to be an 
important case. Wako testified that Colonel Ito and Major Hata discussed the 
case with him prior to the trial, that these discussions began about 15th 
August, 1942, when the 13th Army received the Enemy Airmen's Act from 
Nanking Headquarters, and, further, that the court received instructions 
from Colonel Ito that under the Enemy Airmen's Act the death sentence was 
mandatory if the fliers were found guilty. Wako read all the evidence prior to 
the trial. He claimed that "since the entire charges were long we told the 
Americans they would be tried for bombing of Tokyo and Nagoya." He stated 
also that only a gist of the documentary evidence was read in court, that the 
fliers denied firing on schools, and that the statements personally given by the 
fliers in Toyko were not read in court. At the trial, Wako was not only a judge; 
since the judicial section of the 13th Army was required to have one of its 
members on the court, he acted also in the capacity of its legal adviser. 

The accused Captain Okada was an officer with the 13th Japanese Army in 
Shanghai, China, and in August 1942, he was ordered to sit as one of three 
judges at the trial of the fliers. About three days prior to the trial when he 
received his orders to sit as a judge he was given advance notice as to the 
nature of the proceedings. He had sat as a judge on other courts and was not 
unfamiliar with trial procedure. On the morning of the trial, 28th August, 
1942, he spoke to the accused Wako about the case. Also prior to the trial of 
the eight fliers he heard about the evidence in the case, namely, the Tokyo 
Gendarmerie interrogation and damage reports. He "looked through" two 
reports and Wako explained them to him prior to trial. Major Hata, the 
prosecutor, also talked to Okada about the case prior to trial. Okada testified 
that during the trial the sick prisoner appeared weak and lay on a blanket or 
mattress of some kind throughout the trial. Although he acted as a judge he 
heard only the gist of the documents comprising the interrogation report 
from the Gendarmerie in Tokyo. He also stated that "it was not possible to 
prove which bomber dropped what bomb on what part of the city according to 
the report," that no witnesses were brought before the court, that no defence 
counsel was provided for the fliers, that only documentary -evidence was 
presented, that Wako alone asked the fliers questions about the raid, their 
training, etc. , and that half of the trial, or about an hour, was spent in this line 
of questioning. He also testified that only the gist of the reports were read to 



335 

the court; no member of the court asked the fliers to write out their signatures 
for comparison with the purported signatures on the statements obtained 
from the fliers in Tokyo; no real evidence of the Nagoya and Tokyo raids was 
offered by the prosecution, and the prosecution did not require any witness to 
come into court from the Tokyo Gendarmerie to substantiate the docu- 
mentary evidence from Tokyo. Okada said that he personally based his 
finding of guilty and the death sentences on the Gendarmerie investigations, 
the damage report, the reading of the charges and the statements made in 
court by the fliers. 

The accused Tatsuta became warden of the Kaingwan Military Prison in 
Shanghai on 24th December, 1938, and remained its head until it was closed in 
March 1944. Captain Ooka at the Nanking Prison was his superior who gave 
him orders in regard to Kiangwan Prison. Tatsuta confined the fliers after 
trial on a writ of detention issued by Lieutenant Colonel Toyoma Nakajo, the 
chief judge of the 13th Army military tribunal and so informed Captain Ooka, 
his superior. 

In his official capacity as warden or chief of the guards Tatsuta was also in 
charge of the execution of the three fliers and signed the report of execution. 
The evidence indicated, however, that the order which Tatsuta received to 
carry out the unlawful sentences was of apparent legality, that is to say, on its 
face it appeared to be legal to one who neither knew or was bound to inquire 
whether the order was in fact illegal. Tatsuta visited the courtroom for a 
short time while the so-called trial was in progress and he observed the sick 
condition of one of the prisoners. There was no conclusive proof, however, of 
either actual or constructive knowledge on Tatsuta's part of the illegality of 
the Enemy Airmen's Act, the trial under it, or the sentences passed at the 
trial. 

Following the executions the other five fliers continued to remain in the 
prison serving their life sentences until they were transferred to the military 
prison at Nanking, China on 17th April, 1943. Excepting the sick flyer who 
was returned to Bridge House Prison, the fliers were kept in solitary 
confinement from 28th August, 1942 to 5th December, 1942. They were given 
the same facilities for exercise as other prisoners which was about thirty 
minutes a day. When they remained in their cells they were not permitted to 
talk or walk around. No heat was provided in the cells although it was cold 
enough to freeze water on many nights. They were never given any additional 
clothing or any change of clothing, except one pair of stockings. The cells 
were infested with lice and fleas. The only furnishings were grass mats on the 
floor; there were no beds, chairs or tables. The only latrine facility was a hole 
in the floor of each cell with a can in it. Several requests were made to Tatsuta 
for additional food and clothing that he either refused or ignored. The fliers 
were never visited by the Red Cross or any representative of a neutral 
government. 

The fliers received about six ounces of rice three times a day and some soup 
or a few greens. There were no medical facilities at Kaingwan, and when the 
fliers left the prison for Nanking all of them were in a weak condition. At 



336 

Nanking a fourth prisoner died of malnutrition, beriberi, dysentery and 
general lack of care. 

3. THE VERDICT AND SENTENCES 

At the close of the trial of the case the Commission announced to the 
accused in open court its conclusions as follows: 

"Conclusio?is. After deliberation for two days, the Commission in arriving 
at its findings and sentences, from the evidence presented, draws the 
following conclusions: 

"The offences of each of the accused resulted largely from obedience to the 
laws and instructions of their Government and their Military Superiors. They 
exercised no initiative to any marked degree. The preponderance of evidence 
shows beyond reasonable doubt that other officers, including high 
governmental and military officials, were responsible for the enactment of 
the Ex Post Facto 'Enemy Airmen's Law' and the issuance of special 
instructions as to how these American prisoners were to be treated, tried, 
sentenced and punished. 

"The circumstances set forth above do not entirely absolve the accused 
from guilt. However, they do compel unusually strong mitigating con- 
sideration, applicable to each accused in various degrees. 

"As for Shigeru Sawada: Although he was Commanding General of the 13th 
Japanese Army, he was absent at the front and had no knowledge of the trial 
and special instructions issued by his superiors until his return to Shanghai 
three weeks after the results of the trial had been sent to the Imperial 
Headquarters in Tokyo over his 'Chop.' Although he did not make strong 
written protests to Imperial Headquarters in Tokyo, he did make oral protest 
to his immediate superior, the Commanding General of the Japanese Imperial 
Expeditionary Forces in China to the effect that in his opinion the sentences 
were too severe. Although he was negligent in not personally investigating 
the treatment being given the American prisoners, he was informed by his 
responsible staff that they were being given the treatment accorded 
Japanese officer prisoners. 

"As for Yusei Wako: He, as Judge and law member of the Military 
Tribunal, had before him purported confessions of the American fliers and 
other evidence obtained and furnished by the Military Police Headquarters in 
Tokyo. Although he held this position and was legally trained, he accepted 
the evidence without question and tried and adjudged the prisoners on this 
evidence which was false and fraudulent. However, in voting the death 
penalty he was obeying special instructions from his superiors. 

"As for Ryuhei Okada: Although he sat as a Judge at the trial and enjoyed 
freedom of conscience in determining as to the guilt or innocence of the 
prisoners, he adjudged them guilty. This officer however had no legal 
training and did register a protest to being a judge on any court. In voting the 
death penalty, as in Wako's case, he was obeying special instructions from his 
superiors. 

"As for Sotojiro Tatsuta: Although he did act as executioner at the 
execution and was directly in charge of these prisoners at the Kaingwan 



337 

Military Prison, he did this in his official capacity as warden. Although he did 
not accord them the treatment provided for Prisoners of War, he was obeying 
special instructions from his superiors, and there is no evidence to show that 
he personally mistreated these prisoners or treated them in a manner other 
than that which was provided for in this instructions." 

Shigeru Sawada was found guilty of the charge with the exception of the 
words "knowingly" and "and wilfully", but in pronouncing upon the individual 
specifications, the Commission found the accused General Sawada not guilty 
of having the power and failing to use it to commute, remit and revoke the 
sentences given the fliers. He was sentenced to be confined at hard labour for 
five years. 

Yusei Wako and Ryuhei Okada were found guilty and were sentenced to 
hard labor for nine and five years respectively. 

Sotojiro Tatsuta was found guilty of the charge against him, except as 
regards one of the victims and excepting the words "command and" and 
"commanding officer", substituting for the latter words "Warden". He was 
sentenced to hard labour for five years. 

The findings and sentences were approved by the Reviewing Authority, 
with the exception of the finding that Tatsuta had acted unlawfully in being in 
charge of the execution of three prisoners. 



338 

DOCUMENT NO. 79 

TRIAL OF KURT STUDENT 
(British Military Court, Luneberg, Germany, 10 May 1946) 

SOURCES 
4 LRTWC 118 
13 Ann. Dig. 296 

NOTE 
This post- World War II (1939-1945) war crimes trial concerns the problem, 
among others, all involving prisoners of war, of the extent of the applicability 
of the restrictions on the treatment of prisoners of war contained in the 1929 
Geneva Prisoner-of-War Convention (DOCUMENT NO. 49) to airborne 
capturing units which control only a limited airhead. It should be noted that 
while the accused airborne commander was convicted of three of the eight 
charges filed against him, including the charge of employing prisoners of war 
to perform prohibited work (unloading arms, ammunition, and other warlike 
supplies from German aircraft which had landed on the airfield in the 
airhead), the findings and sentence were not confirmed by the British 
commander who had convened the court. 

EXTRACTS 

The accused was faced with eight charges alleging war crimes committed 
by him in the kingdom of Greece (according to the last three charges, on the 
Island of Crete itself) as Commander-in-Chief of the German forces in Crete, 
at various times during May and June 1941. The charges alleged respectively 
that he was "responsible for," first, the use on or about 22nd May of British 
prisoners of war as a screen for the advance of German troops, when, near 
Maleme on the Island of Crete, troops under his command drove a party of 
British prisoners of war before them resulting in at least six of these British 
prisoners of war being killed by the fire of other British troops; secondly, the 
employment in May of British prisoners of war on prohibited work, when, at 
Maleme aerodrome on the Island of Crete, troops under his command 
compelled British prisoners of war to unload arms, ammunition and warlike 
stores from German aircraft; thirdly, the killing on or about 23rd May of 
British prisoners of war, when, at Maleme aerodrome on the Island of Crete, 
troops under his command shot and killed several British prisoners of war for 
refusing to do prohibited work; fourthly, the bombings on or about 24th May 
of No. 7 General Hospital when, near Galatos on the Island of Crete, aircraft 
under his command bombed a hospital which was marked with a Red Cross; 
fifthly, the use on or about 24th May of British prisoners of war as a screen for 
the advance of German troops, when, near Galatos on the Island of Crete, 
troops under his command drove a party of British prisoners of war before 
them (these British prisoners of war being the staff and patients of No. 7 
General Hospital), resulting in a named Staff Sergeant of the Royal Army 
Medical Corps and other British prisoners of war being killed by the fire of 



339 

British troops; sixthly, the killing on or about 27th May of British prisoners of 
war, when, near Galatos, troops under his command killed three soldiers of 
the Welch Regiment who had surrendered to them; seventhly, the killing on 
or about 27th May of a British prisoner of war, when, near Galatos, troops 
under his command wilfully exposed British prisoners of war to the fire of 
British troops, resulting in the death of a named Private of the Welch 
Regiment; and finally, the killing in June of British prisoners of war, when, at 
a prison camp near Maleme, troops under his command shot and killed several 
British prisoners of war. He pleaded not guilty to all the charges. 

The offences alleged all took place in connection with an attack by German 
parachutists on the Island of Crete under the direction of the accused. The 
latter, then General Student, was shown to have been at his base in Greece 
until the morning of 25th May, 1941, and to have been in Crete from that time 
until the end of June 1941. Air support was in the control of General von 
Richthoven, Commander of the 8th Air Corps, though a certain degree of 
co-operation between the two generals was shown to have existed. 

The evidence on the first charge was that of an R.A.F. Sergeant who 
testified that, on 20th May, 1941, he was among a number of British personnel 
who were captured by German parachutists in Crete and forced to advance up 
a hill towards lines held by New Zealand troops; when the latter shot at the 
prisoners, the Germans following behind returned fire. The witness was 
certain that at least two prisoners were killed and thirteen others fell to the 
ground. 

The same witness also gave evidence relevant to the second and third 
charges. He described how he and other prisoners were forced, on the 21st 
May, to repair shell damage on Maleme aerodrome, which was captured by 
the Germans and under continuous fire. They were shot at if they tried to stop 
work; though no one was killed or wounded, he was beaten when, due to a 
wound, he did not work fast enough. When ordered to unload guns, shells, 
cases and stores from landed aircraft, the prisoners refused to do so. 
Whereupon the officer in charge marched three aside and had them shot in the 
sight of the others. A second R.A.F. Sergeant also told how, on 22nd May, he 
and others were forced at the point of a gun to repair the Maleme aerodrome 
and to unload food and arms from German aircraft under fire from British 
artillery and subject to bombing. Both witnesses added that the prisoners 
were not allowed to take cover. 

A former Sergeant in the R.A.M.C. provided evidence relative to the 
fourth and fifth charges. He described a bombing on 18th May, and a bombing 
and machine-gunning on 20th May, of the hospital, which occupied a 
promontory on the coast and was clearly marked with a Red Cross. After the 
capture on the same day of the hospital, the staff and the wounded were 
marched towards their own lines in the Galatos area. The witness concluded 
that they were intended as a shield for the German troops. A Staff Sergeant 
and some others were killed by fire from the New Zealanders. 

Three affidavits were put in in which members of the Imperial forces who 
had since returned to Canada and New Zealand, stated that the date on which 



340 

the hospital was bombed was 25th May. 

Evidence relating to the sixth and seventh charges were given by two 
former members of the Welch Regiment. They described how on 27th May, 
1941, three men of their section were shot by the Germans after capture and 
the Private named in the seventh charge was made to stand on the skyline so 
that he was killed by fire from his own lines. 

The only direct evidence on the eighth charge was that of the first- 
mentioned witness, but it was not clear whether the alleged shootings took 
place before 30th June, 1941, when the accused gave up his command in 
Crete. 

The accused claimed that he knew nothing of the bombing of the hospital 
and that if any atrocities occurred in the field they were without his consent or 
knowledge and against his wishes. In a pre-trial statement he expressed the 
opinion that: "The question of temporarily detailing prisoners to work in the 
fighting zone must in my opinion be judged separately." When he went into 
the witness box he distinguished between unloading medical supplies and 
food and unloading arms and ammunition, and said that he thought it 
perfectly possible that prisoners did unload one plane as it came in containing 
medical supplies and were then withdrawn when another came in with arms 
and ammunition. 

A former Major attached to the accused's Staff said that the reconnaissance 
photograph of the area of the hospital showed a tented camp but no Red Cross 
markings. Two other German officers stated that no one in the accused's 
headquarters realised that the camp was a hospital. One of these two 
witnesses, the accused's former Chief of Staff, said that Student's superior, 
General Lohr, had ordered the accused to allow General Ringl, the com- 
mander in the western part of the Island (which included Maleme), a free 
hand, and that Lohr had also said that requests for targets to be bombed 
should be made directly by General Ringl to General von Richthoven. Orders 
had gone out, added the witness, that as many prisoners as possible should be 
taken and sent back for interrogation. 

A Brigadier in the New Zealand Expeditionary Force, who had been very 
near the hospital at the time of its bombing, came forward to give evidence for 
the Defence. He stated that on the 18th or 19th May, 1941, one bomb fell 
inside the hospital area, but that it seemed clear that the attack was intended 
for a large crowd of troops who were bathing in the sea. The witness stated 
that the invasion of Crete began on 20th May, and pointed out that after 10 
a.m. on that date the tented area ceased to be a hospital, the staff and patients 
having been driven out by the Germans themselves. He did not think that 
these prisoners had been used as a screen, because no attack was actually 
launched behind them. The position was very fluid at the time, men of his own 
brigade were hunting parachutists and there were many isolated battles in 
progress. The prisoners taken from the hospital were later retaken by the 
Imperial troops, but were not put back there because the whole area of the 
hospital had become a battleground. The witness observed that the red cross 
must have been visible on any reasonable photograph taken of the hospital 



341 

from the air. His general opinion, however, was that the German troops had 
maintained good conduct, and that the red cross had subsequently been 
respected. 

The accused was found not guilty of the first, fourth, fifth, seventh and 
eighth charges but guilty of the second, third and sixth. 

Subject to confirmation by superior military authority, he was sentenced to 
imprisonment for five years. The finding and sentence were not, however, 
confirmed. 



342 

DOCUMENT NO. 80 

IN RE TERRITO 

(U.S. Court of Appeals, 9th Circuit, 8 June 1946) 

SOURCES 

156F.2dl42 

13 Ann. Dig. 284 

NOTE 

This case involved an individual who had been born in the United States 
and who had been captured by the armed forces of the United States in battle 
in Italy while he was serving in the Italian army. While being held in the 
United States as a prisoner of war, he sought release through habeas corpus 
on the ground of his citizenship and also because of the cessation of active 
hostilities. Concerning the question of citizenship as affecting prisoner-of- 
war status, see DOCUMENT NO. 55 and DOCUMENT NO. 153. Con- 
cerning the problem with respect to the cessation of the active hostilities, 
note the rather radical difference between the provisions of Article 75 of the 
1929 Geneva Prisoner-of-War Convention (DOCUMENT NO. 49) and those 
of Article 118 of the 1949 Geneva Prisoner-of-War Convention (DOCUMENT 
NO. 108). However, it appears exceedingly doubtful that, even under the 
provisions of the 1949 Convention, a court would consider that a prisoner of 
war is entitled to release from custody by habeas corpus upon the mere 
cessation of hostilities. (For an instance of improper delay in the release and 
repatriation of prisoners of war under Article 118 of the 1949 Convention 
after the cessation of hostilities, see DOCUMENT NO. 167.) 

EXTRACTS 

STEPHENS, Circuit Judge. 

Gaetano Territo is being held by officers of the United States Army under 
the claim that he is a prisoner of war. Through the interposition of Frances 
Territo Di Maria, Territo petitioned the District Court to issue the writ of 
habeas corpus by which the restraining officer should be required to produce 
Territo in court and justify the restraint. It is alleged that the restraint is 
without legal support. We shall refer to Territo by name or as petitioner. The 
basis of the claimed illegal detention and restraint rests upon the allegation 
that petitioner was born in the United States and that at all times has been 
and is an American citizen. 

The District Court issued an order to show cause why a writ of habeas 
corpus should not issue, and the restraining officer made his return and 
answer, setting out inter alia that Territo was captured in Italy upon the field 
of battle, . . . 

Petitioner claims on appeal, as he claimed in the district court, that he is 
and always has been an American citizen and because of that fact the 
circumstances of the case do not make him legally a prisoner of war. But for 
the claim of United States citizenship, petitioner does not question that he 



343 

was taken a prisoner of war. 

We have reviewed the authorities with care and we have found none 
supporting the contention of petitioner that citizenship in the country of 
either army in collision necessarily affects the status of one captured on the 
field of battle. 

Those who have written texts upon the subject of prisoners of war agree 
that all persons who are active in opposing an army in war may be captured 
and except for spies and other non-uniformed plotters and actors for the 
enemy are prisoners of war. Hale Int. Law, 8th Ed., Ch. Ill, Ch. II, § 131; 
Winthrops Mil. Law & Precedents, 2nd Ed., Vol. 2, Pt. II, p. 1228 
Oppenheims Int. Law, 6th Ed. Rev. (Lauterpacht Ed.) [sic], Vol. II, Ch. IV, 
#128, p. 300. 

. . . Mr. Floury in his richly authenticated book "Prisoners of War" at page 
30 refers to the fact that Irishmen, though then subjects of Great Britain, who 
had taken the oath of allegiance to the South African Republic during the 
Boer war, were treated as prisoners of war. See Moyer v. Peabody, 212 U.S. 
78, 29 S.Ct. 235, 53 L.Ed. 410; Sterling v. Constance, 287 U.S. 378, 53 S.Ct. 
190, 77 L. Ed. 375. 

While not directly in point, an expression in Ex Parte Quirin, 317 U.S. 1, 63 
S. Ct. 1, 87 L.Ed. 3, is indicative of the proper conclusion upon the point under 
consideration. We quote from pages 37-38 of 317 U.S., 63 S.Ct. 15: 
"Citizenship in the United States of an enemy belligerent does not relieve him 
from the consequences of a belligerency which is unlawful because in violation 
of the law of war. Citizens who associate themselves with the military arm of 
the enemy government, and with its aid, guidance and direction enter this 
country bent on hostile acts are enemy belligerents within the meaning of the 
Hague Convention and the law of war." 

The obvious practical implication inherent in the question, as it seems to us, 
directs its solution. The object of capture is to prevent the captured individual 
from serving the enemy. He is disarmed and from then on he must be 
removed as completely as practicable from the front, treated humanely and in 
time exchanged, repatriated or otherwise released. 

It is further argued that the cessation of hostilities between United States 
and Italy, an axis power, and the change of Italy from belligerency against 
the United States to that of active participation against another of the axis 
powers together with the service units in some manner changes the status of 
petitioner. However, no treaty of peace has been negotiated with Italy and 
petitioner remains a prisoner of war. We hold, as did the District Court, that 
petitioner's restraint by the respondent is a legal one. 

Affirmed. 



344 

DOCUMENT NO. 81 

TRIAL OF TANAKA CHUICHI AND TWO OTHERS 
(Australian Military Court, Rabaul, 12 July 1946) 

SOURCE 
11LRTWC62 

NOTE 
The accused were charged with the offense of maltreatment of prisoners of 
war. Of particular interest is the fact that while one aspect of the evidence 
supporting the charge was concerned with a clearcut case of maltreatment 
consisting of tying to a post and beating with a stick, another aspect of what 
was apparently considered to constitute such maltreatment was the rather 
unusual one that the accused had cut the hair and beards of Sihk prisoners of 
war and had compelled one such prisoner of war to smoke a cigarette, all 
contrary to the tenets of the Sihk religion and thus, presumably, in violation 
of Article 16(1) of the 1929 Geneva Prisoner-of-War Convention 
(DOCUMENT NO. 49) which provides that "[p]risoners of war shall enjoy 
complete liberty in the exercise of their religion." (Article 34(1) of the 1949 
Geneva Prisoner-of-War Convention (DOCUMENT NO. 108) contains an 
almost identical provision.) 

EXTRACTS 

1. THE CHARGE 

The three accused were charged with the ill-treatment of prisoners of war. 
They were convicted and sentenced to terms of imprisonment varying from 6 
months to 2 years. 

2. THE EVIDENCE 

The evidence for the prosecution, which was entirely documentary, 
showed that the accused, who were non-commissioned officers of the 
Japanese forces guarding the prisoners, had on two occasions severely ill- 
treated them by tying them to a post and beating them with a stick until they 
lost consciousness. The beatings were administered for alleged infringe- 
ments of camp discipline by the prisoners of war. In each case the ill- 
treatment was aggravated by the fact that the accused, after beating the 
prisoners, cut off their hair and beards and in one instance forced a prisoner to 
smoke a cigarette. The prisoners were Indians, of the Sikh religion, which 
forbids them to have their hair or beards removed or to handle tobacco. 



345 



DOCUMENT NO. 82 

TRIAL OF LIEUTENANT GENERAL HARUKEI ISAYAMA 

AND SEVEN OTHERS 

(U.S. Military Commission, Shanghai, 25 July 1946) 

SOURCE 
5 LRTWC 60 

NOTE 
This is another of the post-World War II (1941-1945) war crimes trials in 
which the accused were charged with denying a fair trial to prisoners of war. 
(See also DOCUMENT NO. 78; and DOCUMENT NO. 101, under the rubric 
"Murder of Captured Aviators.") 

EXTRACTS 
A. OUTLINE OF THE PROCEEDINGS 

1. THE CHARGES 

It was charged that the accused, Lieutenant-General Harukei Isayama, 
Colonel Seiichi Furukawa, Lieutenant-Colonel Naritaka Suguira, Captain 
Yoshio Nakano, Captain Tadao Ito, Captain Maraharu Matsui, First- 
Lieutenant Jitsuo Date and First-Lieutenant Ken Fujikawa did each "at 
Taihoku, Formosa, wilfully, unlawfully and wrongfully, commit cruel, 
inhuman and brutal atrocities and other offences against certain American 
Prisoners of War, by permitting and participating in an illegal and false trial 
and unlawful killing of said prisoners of war, in violation of the laws and 
customs of war." The charges asserted that the offences of the first two 
accused were committed "on or between 14th April, 1945 and 19th June, 
1945," and those of the others "on or between 21st May, 1945 and 19th June, 
1945"; and that each of the accused except the first two mentioned above 
committed the offences charged "as a member of a Japanese Military 
Tribunal." 

When taken together, the charge and accompanying Bill of Particulars, 
which specified the offences asserted that the accused Lieutenant-General 
Harukei Isayama did "permit, authorize and direct an illegal, unfair, 
unwarranted and false trial" before a Japanese Military Tribunal of certain 
American prisoners of war, did "unlawfully order and direct a Japanese 
Military Tribunal" to sentence to death these American prisoners of war, and 
did, "unlawfully order, direct and authorize the illegal execution" of the 
American prisoners of war. The charge and accompanying Bill of Particulars 
against the accused, Colonel Seiichi Furukawa, were similar except as to 
those relating to the appointment and convening of the Japanese Military 
Tribunal. With respect to the accused Lieutenant-Colonel Naritaka Sugiura, 
Captain Yoshio Nakano, Captain Tadao Ito, Captain Marashara Matsui, 
First-Lieutenant Jitsuo Date and First-Lieutenant Ken Fujikawa, the 
Charges and Bills of Particulars asserted that they as members of the 
Japanese Military Tribunals did "knowlingly, wrongfully, unlawfully and 



346 

falsely try, prosecute and adjudge certain charges" against the several 
American prisoners of war "upon false and fraudulent evidence and without 
affording said prisoners of war a fair hearing," did "knowingly, unlawfully 
and wilfully sentence" the several American prisoners of war to be put to 
death, resulting in their unlawful death. Several of the accused were further 
charged in their capacities as chief judge and prosecutors and those who acted 
as judges were further charged with the wrongful and wilful failure to 
perform their duties as such judges and with the failure and neglect to 
provide a fair and proper trial. 
The accused pleaded not guilty. 

2. THE EVIDENCE BEFORE THE COMMISSION 

The evidence showed that fourteen United States airmen were captured by 
the Japanese Formosan Army and interrogated for alleged violations of the 
Formosa Military Law relating to the punishment of enemy airmen for acts of 
bombing and strafing in violation of International Law. These fourteen 
airmen were for the most part radiomen, photographers and gunners, and 
were captured between 12th October, 1944, on which the Military Law was 
issued, and 27th February, 1945. The senior members of the plane crews — 
the pilots and co-pilots — were sent to Tokyo for intelligence purposes and 
were not tried by the Japanese with their fellow crew-members. 

The Law in question provided that its terms would apply to all enemy 
airmen within the jurisdiction of the 10th Area Army and that punishment 
would be meted out to all enemy airmen who carried out any of the following: 
bombing and strafing with intent to destroy or burn private objectives of 
non-military nature; bombing and strafing non-military objectives apart from 
unavoidable circumstances; disregarding human rights and carrying out 
inhuman acts; or entering into the jurisdiction with intentions of carrying out 
any of the foregoing. Death was provided as the punishment, but this, 
according to circumstances, could be changed to imprisonment for life or for 
not less than 10 years. The law stated that the punishment would be carried 
out by the appropriate commander; and provided for the establishment of a 
Military Tribunal at Taihoku composed of officers of the 10th Area Army and 
other units under its command, and for the applicability of the regulations of 
the special court-martial to the Military Tribunal. It was further provided 
that anyone violating this law would be tried by Military Tribunal; that the 
commander would be in charge of the Tribunal and that the Tribunal would be 
composed of three judges — two ordinary army officers and one judicial 
officer — to be appointed by the commander. 

All of the fourteen were interrogated by members of the 10th Area Army 
Judicial Department. There was some evidence that, during the investi- 
gation, the chief of the Judicial Department, the accused Furukawa, inquired 
in Tokyo as to the disposition of the captured airmen, and that he was told 
that the fourteen should be tried if they came within the scope of the Military 
Law. On his return to Formosa he instructed his subordinates to complete the 
investigations. The evidence before the United States Military Commission 
disclosed that the records of the interrogations of several of the American 



347 

airmen were falsified before the trial by the Japanese Court or before the 
Japanese Court records were completed. 

The interpreter who was present when the falsified statements were taken 
testified that none of the airmen concerned made any admissions of in- 
discriminate bombing or strafing. This evidence was supported by the 
testimony of certain of those who had the task of recording the interro- 
gations. The accused denied the falsification and claimed that admissions of 
guilt had been made by the airmen. 

It was the contention of the accused in the present trial that, in accordance 
with Japanese War Department directives, the 10th Area Army asked 
instructions of the Central Government during the pre-trial investigations 
and forwarded statements of opinion prior to referring the cases for trial. A 
reply came back from Tokyo stating that if the opinions given were correct, 
severe judgment should be meted out. The accused Isayama, Chief of Staff, 
10th Area Army, was advised of all proceedings. During the absence of 
Furukawa from headquarters on a trip around Formosa, his assistant, Major 
Matsuo sent the final reports of investigation to General Ando and Ando 
ordered the trials of the American airmen and appointed the Military 
Tribunal. 

The accused Sugiura was the chief judge on all cases; Nakano was associate 
judge on all cases; Date was the judicial judge on the trial of three airmen; 
Matsui was the prosecutor in the case against two airmen, and the judicial 
judge in the cases against five other airmen; Fujikawa was the judicial judge 
in the case of two airmen; and Ito was the prosecutor in the trial of one airmen 
and the judicial judge in the trial of another airmen. 

The fourteen Americans were tried in units according to the planes of 
which they were crew members. There were six cases, all brought to trial on 
21st May, 1945. The American airmen were not afforded the opportunity to 
obtain evidence or witnesses on their own behalf. The defence attempted to 
justify this, first on the ground that lack of personnel and facilities made it 
impossible to permit the airmen to go to the scenes of their alleged 
indiscriminate bombings and strafings, and secondly on the ground that the 
airmen were given full opportunity in court to make whatever statements 
they wished. Some testimony was adduced by the prosecution in the United 
States trial to show that, except for the charges, no other document or 
evidence was interpreted to the airmen, and that they were not defended by 
counsel. 

There was some evidence indicating that, under the Japanese system of 
military justice, an accused was not allowed defence counsel in time of war; 
the evidence before a tribunal was largely documentary, based on admissions 
and statements of the accused in pre-trial interrogations and reports of 
damage and investigations by the gendarmerie; and the accused might testify 
before the tribunal and might introduce evidence on his behalf. It was the 
contention of the defence that this was the procedure followed in each of the 
trials of the fourteen American airmen, and this procedure, it was testified, 
was the normal one. 



348 

It was the contention of the defence that since an intention on the part of 
the Japanese Prosecution to demand the death penalty had been approved by 
Tokyo, and since the death penalty had been demanded at the. trials, the 
military tribunal had to adjudge death and the commander had to order its 
execution unless Tokyo ordered otherwise when advised of the results of the 
trials. The commander, Ando, issued an order for the execution of all fourteen 
after final instructions were received from Tokyo. On the morning of 19th 
June, 1945, the American fliers were lined up in front of an open ditch, shot to 
death and then buried in that ditch. 

The Japanese records of trial relating to these American airmen, and which 
were turned over to American authorities in September 1945, were not 
completed until after the Japanese surrender, and were written up as 
directed by Furukawa. The accused did not sign the records of the trials until 
after the war. 

3. THE FINDINGS AND SENTENCES 

All of the accused were found guilty. 

Seiichi Furukawa and Naritaka Sugiura were sentenced to death; Haukei 
Isayama and Yoshio Nakano were sentenced to life imprisonment; Masaharu 
Matsui, Jitsuo Date, Ken Fujikawa and Tadao Ito were awarded terms of 
imprisonment of 40, 30, 30 and 20 years respectively. 

The findings of guilty were approved by the Reviewing Authority with the 
exception of those against Jitsuo Date and Ken Fujikawa. The sentences 
against Seiichi Furukawa and Naritaka Sugiura were commuted to life 
imprisonment. The sentences passed on the remaining four defendants were 
approved. 



349 
DOCUMENT NO. 83 

TRIAL OF GENERALOBERST NICKOLAUS VON FALKENHORST 

(British Military Court, Brunswick, Germany, 29 July - 2 August 1946) 

SOURCE 
11LRTWC 18 

NOTE 

This is another of the cases involving the transmission of or compliance 
with the provisions of the so-called "Commando Order" issued by Hitler on 18 
October 1942 pursuant to which quarter was to be denied to enemy 
commandos and any of them who were captured were to be handed over to the 
SD (Sicherheitsdienst), the Nazi party intelligence agency for the security 
police. Such an action was known to be the equivalent of execution for the 
individual concerned. (The International Military Tribunal found the SD to be 
a "criminal organization.") Here the accused did not take the execution 
function upon himself, as did General Dostler (DOCUMENT NO. 69). 
However, he did re-issue Hitler's order to his subordinate commands and he 
did turn prisoners of war captured by his forces over to the SD knowing that 
they would then be denied the protections to which they were entitled as 
prisoners of war. 

EXTRACTS 
A. OUTLINE OF THE PROCEEDINGS 

The defendant, Nickolaus von Falkenhorst, a German national and former 
Generaloberst in the German army, was tried at Brunswick before a British 
Military Court sitting with a Judge Advocate. The defendant was charged 
with nine charges pursuant to Regulation 4 of the Regulations attached to the 
Royal Warrant for the trial of War Criminals, dated 6th June, 1945. The 
charges covered the period from October, 1942, to July, 1944, and were as 
follows: 
1st Charge 

Committing a war crime in that he at Oslo, in the Kingdom of Norway, 
when as Commander-in-Chief of the Armed Forces, Norway (Wehr- 
machtbefehlshaber Norwegen), in an order dated on or about 26th 
October, 1942, in violation of the laws and usages of war, incited 
members of the forces under his command not to accept quarter or to 
give quarter to Allied soldiers, sailors and airmen, taking part in 
Commando Operations, and, further, in the event of any Allied soldier, 
sailor or airman taking part in such Commando Operations being 
captured, to kill them after capture. 
3rd Charge 

Committing a War Crime in that in the Kingdom of Norway, in or 
about the month of November, 1942, in violation of the laws and usages of 
war, when as Commander-in-Chief of the Armed Forces, Norway 
(Wehrmachtbefehlshaber Norwegen), was concerned in the killing of 



350 

fourteen British Prisoners of War. 



4th Charge 



Committing a War Crime in that he in the Kingdom of Norway, in or 
about the month of November, 1942, in violation of the laws and usages of 
war, was responsible as Commander-in-Chief of the Armed Forces, 
Norway (Wehrmachtbefehlshaber Norwegen), for the handing over by 
forces under his command to the Sicherheitsdient (Security Service) of 
nine British Prisoners of War who had taken part in Commando 
Operations, with the result that the said Prisoners were killed. 

6th Charge 

Committing a War Crime in that he in the Kingdom of Norway, in or 
about the month of May, 1943, in violation of the laws and usages of war, 
was responsible as Commander-in-Chief of the Armed Forces, Norway 
(Wehrmachtbefehlshaber Norwegen), for the handing over by forces 
under his command to the Sicherheitsdienst (Security Service) of one 
officer, one Non-Commissioned Officer and five Naval Ratings, British 
Prisoners of War, who had taken part in Commando Operations, with the 
result that the said Prisoners were killed. 

7th Charge 

Committing a War Crime in that he at Oslo, in the Kingdom of 
Norway, when as Commander-in-Chief of the Armed Forces of Norway 
(Wehrmachtbefehlshaber Norwegen), in an order dated 15th June, 1943, 
in violation of the laws and usages of war, incited members of the forces 
under his command not to accept quarter or to give quarter to Allied 
soldiers, sailors and airmen taking part in Commando Operations, and, 
further, in the event of any Allied soldier, sailor or airman taking part in 
such Commando Operations being captured, to kill them after capture. 

8th Charge 

Committing a War Crime in that he in the Kindgom of Norway, in or 
about the month of July, 1943, in violation of the laws and usages of war, 
was responsible as Commander-in-Chief of the Armed Forces, Norway 
(Wehrmachtbefehlshaber Norwegen), for the handing over by forces 
under his command to the Sicherheitsdienst (Security Service) of one 
Norwegian Naval Officer, five Norwegian Naval Ratings, and one Royal 
Navy Rating, Prisoners of War, with the result that the said Prisoners 
were killed. 

9th Charge 

Committing a War Crime in that he at Oslo, in the Kindgom of 
Norway, when as Commander-in-Chief of the Armed Forces, Nonvay 
(Wehrmachtbefehlshaber Norwegen), in a document dated 19th July, 
1944 in violation of the laws and usages of war, ordered troops under his 
command to deprive certain Allied Prisoners of War of their rights as 
Prisoners of War, under the Geneva Convention. 

To each of the nine charges the defendant pleaded Not Guilty. 

In his opening speech, the Prosecuting Officer claimed that during the 
relevant period covered by the nine charges, the defendant was the 



351 

Commander-in-Chief (Wehrmachtbefehlshaber) of the German Armed 
Forces in Norway, which included the Army, Navy and the Air Force. In this 
capacity the defendant was directly responsible to the OKW (the Supreme 
Headquarters of the German Armed Forces) in Berlin. 

The facts were that during 1941 and 1942, the Allied Forces made a series 
of raids on Norwegian shipping and vital installations in the territory of 
Norway which were known as "Commando Raids". These raids had a certain 
damaging effect upon the German war effort and to discourage such raids in 
the future, Hitler himself issued an order dated 18th December, 1942 [sic], 
referred to in this report as the "Commando Order". This order was received 
by the defendant, who passed it on to the subordinate military units under his 
command and also distributed it to the naval and air force commanders in 
Norway in the latter part of October, 1942. A photostat of the original 
Commando Order was exhibited in the case, and its contents have been set 
out here as an authentic version of this well-known order: 
Paragraph 1 

"For some time our enemies have been using in their warfare, methods 
which are outside the international Geneva Conventions. Especially 
brutal and treacherous is the behaviour of the so-called Commandos 
who, as is established, are partially recruited even from freed criminals 
in enemy countries. Their capture orders divulge that they are directed 
not only to shackle prisoners but also to kill defenceless prisoners on the 
spot at the moment in which they believe that the latter, as prisoners, 
represent a burden in the further pursuance of their purpose or can 
otherwise be a hindrance. Finally, orders have been found in which the 
killing of prisoners has been demanded in principle. 
Paragraph 2 

"For this reason it was already announced in an addendum to the 
Armed Forces Report of 7th October, 1942, that in the future Germany 
in the face of these sabotage troops of the British and their accomplices 
will resort to the same procedure, i.e., that they will be ruthlessly 
mowed down by the German troops in combat wherever they may 
appear. 
Paragraph 3 

"I therefore Order, from now on all opponents brought to battle by 
German troops in so-called commando operations in Europe or Africa, 
even when it is outwardly a matter of soldiers in uniform or demolition 
parties with or without weapons, are to be exterminated to the last man 
in battle or while in flight. In these cases it is immaterial whether they 
are landed for their operations by ship or aeroplane or descend by 
parachute. Even should these individuals on their being discovered, 
make as if to surrender, all quarter is to be denied them on principle. A 
detailed report is to be sent to the O.K.W. on each separate case for 
publication in the Wehrmacht communique." 
Paragraph 4 

"If individual members of such commandos working as agents, 



352 

saboteurs, etc., fall into the hands of the Wehrmacht by other means, 
e.g. through the police in any of the countries occupied by us, they are to 
be handed over to the S.D. immediately. It is strictly forbidden to hold 
them in military custody, e.g. in PW camps, etc., even as a temporary 
measure." 
Paragraph 5 

"This order does not apply to the treatment of any enemy soldier who 
in the course of normal hostilities (large scale offensive actions, landing 
operations and air-born operations) are captured in open battle or give 
themselves up. Nor does this order apply to enemy soldiers falling into 
our hands after battles at sea or enemy soldiers trying to save their lives 
by parachute after battles. 
Paragraph 6 

"In the case of non-execution of this order, I shall make responsible 
before the Court martial all commanders and officers who have either 
failed to carry out their duty in instructing the troops in this order, or 
who acted contrary to this order in carrying it out. 

Signed Adolf Hitler." 
At the end of a supplementary Order issued by the fuhrer on the same day, 
namely, 18th October, 1942, Hitler set out to explain to his officers why it had 
become necessary to issue this Commando Order and this Supplementary 
Order, and ended with this passage, which constituted an addition to the 
original order: 

"If it should become necessary for reasons of interrogation to spare 
initially one man or two, then they are to be shot immediately after 
interrogation." 
The prosecution submitted that paragraph 3 was illegal and that it 
constituted an order to deny quarter to combatant troops. 

At the same time that Hitler signed this Order, he issued the sup- 
plementary order of the same date already mentioned which was addressed 
to Commanding Officers only, and in which he stated that the main Order was 
a counter measure to the partisan activities on the eastern front. 

The supplementary order also stated that the system of commando 
operations was an illegal method of warfare in that if commandos were caught 
in their operation they immediately surrendered, thereby preserving their 
lives, and if not so caught, they escaped to neutral countries. The importance 
of the last paragraph of the supplementary order (quoted above) was stressed 
by the prosecutor. 

The defendant received the Commando Order and the Supplementary 
Order on or about 24th October, 1942, whereupon he re-issued the order 
himself. No copy of the actual document so issued by the defendant was 
available at the trial. The re-issuing of the Commando Order formed the 
subject matter of the first charge against the defendant. 

In the document dated 15th June, 1943, the defendant issued a second 
document addressed to officers only in which he referred to the original 
Commando Order of 18th October, 1942, in these terms: 



353 

"Saboteurs. ... I am under the impression that the wording of the 

above order" (the Commando Order) " which had to be destroyed, is no 

longer clearly in mind, and I therefore again bring to particular notice 

paragraph 3" (above quoted). 

In a later passage in the same document appeared the words: "A further 

order of the Wehrmacht Commander, Norway, Top Secret, of 26. 10.42, since 

destroyed, lays down: 'If a man is saved for interrogation he must not survive 

his comrades for more than 24 hours.'." The issuing of that document by the 

defendant was relied upon by the Prosecution to substantiate the 7th charge. 

The intervening charges 2 — 6 inclusive, and charge No. 8, all dealt with 
specific instances in which British or Norwegian prisoners of war were killed 
by German troops in Norway or were handed over to the S. D. , with the result 
that they were killed by that agency. In each case the captured commandos 
were wearing uniform, with the addition that in the case of those captured 
and killed as alleged in the third charge, they were wearing ski-ing clothes 
underneath their uniforms. Further, in each case the commandos were 
engaged on attacking targets directly connected with the German war effort. 
The 9th charge was in respect of a document which the defendant had 
issued in July, 1944, and was of a different nature from the Commando Order, 
being an order whereby certain prisoners of war, e.g. Jews, were not to be 
held in prisoner of war camps but were to be handed over to the S.D. 

The evidence produced in support of these charges by the prosecution 
consisted of the oral evidence of a former German officer, Major-General von 
Behrens, who served under the defendant at the relevant time and in whose 
area of command those victims were killed whose death formed the subject 
matter of the 3rd charge. There was also the oral evidence of Colonel 
Scotland, who gave formal evidence as to the statements of the defendant 
made prior to trial, and expert evidence as to the position of the defendant 
when Wehrmachtbefehlshaber in Norway. The witness giving this last- 
mentioned testimony stated, inter alia, the following: 

"His (the defendant's) duties would be to act as the representative of 
the O.K.W. to pass on any orders which were issued to him by the 
O.K.W. and these orders through him would reach all branches of the 
armed forces in Germany. It was in evidence that the Fuhrer's 
Commando Order had been received by the defendant from the O.K.W. " 
On this point the witness was asked the following question and gave the 
answer stated: 

Q. "You know the Fuhrerbefehl which is addressed to Norway. Would it 

be the duty of the Wehrmachtbefehlshaber to forward that on to 

everybody, whether of the army, navy or the air force?" A. "Yes, such an 

order, coming from the highest authority, his would be the only final 

channel through which it could reach the armed forces in Norway." 

The remaining evidence for the prosecution consisted of documentary 

evidence in the form of affidavits put in under Regulation 8 (i) (a) of the Royal 

Warrant, most of which dealt with the fate of allied service personnel who 

were captured on Commando raids and were either shot by the armed forces 



354 



or handed over to the S.D. and shot by that agency at a later stage. 

Although the prosecution did not suggest that any of the victims in the 
various charges met their death as a result of his direct order, they contended 
that the evidence showed that the death of the victims or their being handed 
over to the S.D. and subsequent death was the result of the defendant's 
re-issuing the Commando Order in October, 1942, and republishing it in 1943, 
with the amendment to the original order providing that those spared for 
interrogation should be liquidated within 24 hours. 

The prosecution withdrew the fifth charge .... 

The accused was acquitted on charge No. 2 . . . . 

On all other charges the defendant was found guilty, and sentenced to 
death. His sentence was, however, commuted to one of life imprisonment. 



355 
DOCUMENT NO. 84 

TRIAL OF LIEUTENANT GENERAL KURT MAELZER 
(U.S. Military Commission, Florence, Italy, 9-14 September 1946) 

SOURCES 
11LRTWC53 
13 Ann. Dig. 289 

NOTE 
This case involves the only known instance of a war crimes trial in the 
European area after World War II (1939-1945) in which the accused was 
charged with the offense of violating Article 2(2) of the 1929 Geneva Prisoner- 
of-War Convention (DOCUMENT NO. 49) which requires that prisoners of 
war be protected from insults and public curiosity, a provision now found in 
Article 13(2) of the 1949 Geneva Prisoner-of-War Convention (DOCUMENT 
NO. 108). This type of violation of the laws and customs of war was committed 
much more frequently by the Japanese during World War II (1941-1945) (see 
DOCUMENT NO. 101, under the rubric "Prisoners of War Humiliated.") 
From news photographs and reports made during the course of the hostilities 
in Vietnam (c. 1965-1973), this was also the practice of the North Vietnamese. 

EXTRACT 
A. OUTLINE OF THE PROCEEDINGS 

1. THE CHARGE 

The accused was charged with ". . . exposing prisoners of war ... in his 
custody ... to acts of violence, insults and public curiosity." 

2. THE EVIDENCE 

Some time in January, 1944, Field Marshal Kesselring, commander-in- 
chief of the German forces in Italy, ordered the accused who was commander 
of Rome garrison to hold a parade of several hundreds of British and 
American prisoners of war in the streets of the Italian capital. This parade, 
emulating the tradition of the triumphal marches of ancient Rome, was to be 
staged to bolster the morale of the Italian population in view of the recent 
allied landings, not very far from the capital. The accused ordered the parade 
which took place on 2nd February, 1944. 200 American prisoners of war were 
marched from the Coliseum, through the main streets of Rome under armed 
German escort. The streets were lined by forces under the control of the 
accused. The accused and his staff officers attended the parade. According to 
the Prosecution witnesses (some of whom were American ex-prisoners of war 
who had taken part in the march), the population threw stones and sticks at 
the prisoners, but, according to the defence witnesses, they threw cigarettes 
and flowers. The prosecution also alleged that when some of the prisoners 
were giving the "victory sign" with their fingers the accused ordered the 
guards to fire. This order, however, was not carried out. A film was made of 
the parade and a great number of photographs taken which appeared in the 
Italian press under the caption "Anglo-Americans enter Rome after all . . . 



356 

flanked by German bayonettes." The accused pleaded in the main that the 
march was planned and ordered by his superiors and that his only function as 
commander of Rome garrison was to guarantee the safe conduct and security 
of the prisoners during the march, which he did. He stated that the march was 
to quell rumours of the German defeat and to quieten the population of Rome, 
not to scorn or ridicule the prisoners. 

3. FINDINGS AND SENTENCE 

The accused was found guilty and sentenced to 10 years' imprisonment. 
The sentence was reduced to three years' imprisonment by higher military 
authority. 



357 

DOCUMENT NO. 85 

UNITED STATES AND OTHERS v. HERMAN W. GOERING 

AND OTHERS 

(International Military Tribunal, Nuremberg, Germany, 

30 September - 1 October 1946) 

SOURCES 
Nazi Conspiracy and Aggression: Opinion and Judgment 
22 Trial of Major War Criminals 411 
41AJIL172 

NOTE 

This trial of the major German (Nazi) personalities charged with the 
commission of war crimes having no particular geographical location, 
conducted pursuant to the London Agreement and Charter of 8 August 1945 
(DOCUMENT NO. 68), began on 20 November 1945 and ended on 31 August 
1946. The Tribunal reconvened on 30 September - 1 October 1946 for the 
reading of its opinion and the announcement of the sentences. The members 
of the Tribunal were unanimous in their opinion on the law and on the findings 
of guilty. The Soviet member of the Tribunal dissented from the findings that 
Schacht, von Papen, and Fritsche were not guilty, from the decision to 
sentence Hess to life imprisonment only, and not death, and from the findings 
that the Reich Cabinet, the General Staff, and the OKW were not criminal 
organizations. 

EXTRACTS 

It was also submitted on behalf of most of these defendants that in doing 
what they did they were acting under the orders of Hitler, and therefore 
cannot be held responsible for the acts committed by them in carrying out 
these orders. The Charter specifically provides in Article 8: 

"The fact that the defendant acted pursuant to order of his 

Government or of a superior shall not free him from responsibility, but 

may be considered in mitigation of punishment." 
The provisions of this Article are in conformity with the law of all nations. 
That a soldier was ordered to kill or torture in violation of the international 
law of war has never been recognized as a defense to such acts of brutality, 
though, as the Charter here provides, the order may be urged in mitigation of 
the punishment. The true test, which is found in varying degrees in the 
criminal law of most nations, is not the existence of the order, but whether 

moral choice was in fact possible. 

***** 

VI. WAR CRIMES AND CRIMES AGAINST HUMANITY 

The evidence relating to war crimes has been overwhelming, in its volume 

and its detail. It is impossible for this judgment adequately to review it, or to 

record the mass of documentary and oral evidence that has been presented. 

The truth remains that war crimes were committed on a vast scale, never 



358 

before seen in the history of war. They were perpetrated in all the countries 
occupied by Germany, and on the high seas, and were attended by every 
conceivable circumstance of cruelty and horror. There can be no doubt that 
the majority of them arose from the Nazi conception of "total war," with 
which the aggressive wars were waged. For in this conception of "total war" 
the moral ideas underlying the conventions which seek to make war more 
humane are no longer regarded as having force or validity. Everything is 
made subordinate to the overmastering dictates of war. Rules, regulations, 
assurances, and treaties, all alike, are of no moment; and so, freed from the 
restraining influence of international law, the aggressive war is conducted by 
the Nazi leaders in the most barbaric way. Accordingly, war crimes were 
committed when and wherever the Fuehrer and his close associates thought 
them to be advantageous. They were for the most part the result of cold and 
criminal calculation. 

On some occasions war crimes were deliberately planned long in advance. 
In the case of the Soviet Union, the plunder of the territories to be occupied, 
and the ill-treatment of the civilian population, were settled in minute detail 
before the attack was begun. As early as the autumn of 1940, the invasion of 
the territories of the Soviet Union was being considered. From that date 
onw r ards, the methods to be employed in destroying all possible opposition 
were continuously under discussion. 

Similarly, when planning to exploit the inhabitants of the occupied 
countries for slave labor on the very greatest scale, the German Government 
conceived it as an integral part of the war economy, and planned and 
organized this particular war crime down to the last elaborate detail. 

Other war crimes, such as the murder of prisoners of war who had escaped 
and been recaptured, or the murder of commandos or captured airmen, or the 
destruction of the Soviet commissars, were the result of direct orders 
circulated through the highest official channels. 

The Tribunal proposes, therefore, to deal quite generally with the question 
of war crimes, and to refer to them later when examining the responsibility of 
the individual defendants in relation to them. Prisoners of war were ill- 
treated and tortured and murdered, not only in defiance of the well- 
established rules of international law, but in complete disregard of the 
elementary dictates of humanity. Civilian populations in occupied territories 
suffered the same fate. Whole populations were deported to Germany for the 
purposes of slave labor upon defense works, armament production and 
similar tasks connected with the war effort. Hostages were taken in very 
large numbers from the civilian populations in all the occupied countries, and 
were shot as suited the German purposes. Public and private property was 
systematically plundered and pillaged in order to enlarge the resources of 
Germany at the expense of the rest of Europe. Cities and towns and villages 
were wantonly destroyed without military justification or necessity. 
(A) Murder and Ill-Treatment of Prisoners of War 

Article 6 (b) of the Charter defines war crimes in these words: 

"War Crimes: namely, violations of the laws or customs of war. Such 



359 

violations shall include, but not be limited to, murder, ill-treatment or 
deportation to slave labor or for any other purpose of civilian population 
of or in occupied territory, murder or ill-treatment of prisoners of war or 
persons on the seas, killing of hostages, plunder of public or private 
property, wanton destruction of cities, towns, or villages, or devastation 
not justified by military necessity." 

In the course of the war, many Allied soldiers who had surrendered to the 
Germans were shot immediately, often as a matter of deliberate, calculated 
policy. On the 18th October 1942, the defendant Keitel circulated a directive 
authorized by Hitler, which ordered that all members of Allied "commando" 
units, often when in uniform and whether armed or not, were to be 
"slaughtered to the last man", even if they attempted to surrender. It was 
further provided that if such Allied troops came into the hands of the military 
authorities after being first captured by the local police, or in any other way, 
they should be handed over immediately to the SD. This order was 
supplemented from time to time, and was effective throughout the remainder 
of the war, although after the Allied landings in Normandy in 1944 it was 
made clear that the order did not apply to "commandos" captured within the 
immediate battle area. Under the provisions of this order, Allied 
"commando" troops, and other military units operating independently, lost 
their lives in Norway, France, Czechoslovakia, and Italy. Many of them were 
killed on the spot, and in no case were those who were executed later in 
concentration camps ever given a trial of any kind. For example, an American 
military mission which landed behind the German front in the Balkans in 
January 1945, numbering about 12 to 15 men and wearing uniforms, were 
taken to Mauthausen under the authority of this order, and according to the 
affidavit of Adolf Zutte, the adjutant of the Mauthausen Concentration 
Camp, all of them were shot. 

In March 1944 the OKH issued the "Kugel" or "Bullet" decree, which 
directed that every escaped officer and NCO prisoner of war who had not 
been put to work, with the exception of British and American prisoners of 
war, should on recapture be handed over to the SIPO and SD. This order was 
distributed by the SIPO and SD to their regional offices. These escaped 
officers and NCOs were to be sent to the concentration camp at Mauthausen, 
to be executed upon arrival, by means of a bullet shot in the neck. 

In March 1944, 50 officers of the British Royal Air Force, who escaped from 
the camp at Sagan where they were confined as prisoners, were shot on 
recapture, on the direct orders of Hitler. Their bodies were immediately 
cremated, and the urns containing their ashes were returned to the camp. It 
was not contended by the defendants that this was other than plain murder, 
in complete violation of international law. 

When Allied airmen were forced to land in Germany they were sometimes 
killed at once by the civilian population. The police were instructed not to 
interfere with these killings, and the Ministry of Justice was informed that no 
one should be prosecuted for taking part in them. 

The treatment of Soviet prisoners of war was characterized by particular 



360 

inhumanity. The death of so many of them was not due merely to the action of 
individual guards, or to the exigencies of life in the camps. It was the result of 
systematic plans to murder. More than a month before the German invasion 
of the Soviet Union the OKW were making special plans for dealing with 
political representatives serving with the Soviet armed forces who might be 
captured. One proposal was that "political Commissars of the army are not 
recognized as prisoners of war, and are to be liquidated at the latest in the 
transient prisoner of war camps." The defendant Keitel gave evidence that 
instructions incorporating this proposal were issued to the German army. 

On the 8th September 1941, regulations for the treatment of Soviet 
prisoners of war in all prisoner of war camps were issued, signed by General 
Reinecke, the head of the prisoner of war department of the high command. 
These orders stated: 

"The Bolshevist soldier has therefore lost all claim to treatment as an 
honorable opponent, in accordance with the Geneva Convention 
. . . The order for ruthless and energetic action must be given at the 
slightest indication of insubordination, especially in the case of 
Bolshevist fanatics. Insubordination, active or passive resistance, must 
be broken immediately by force of arms (bayonets, butts, and firearms) 
. . . Anyone carrying out the order who does not use his weapons, or does 
so with insufficient energy, is punishable . . . Prisoners of war 
attempting escape are to be fired on without previous challenge. No 
warning shot must ever be fired . . . The use of arms against prisoners of 
war is as a rule legal." 
The Soviet prisoners of war were left without suitable clothing; the wounded 
without medical care; they were starved, and in many cases left to die. 

On the 17th July 1941, the Gestapo issued an order providing for the killing 
of all Soviet prisoners of war who were or might be dangerous to National 
Socialism. The order recited: 

"The mission of the commanders of the SIPO and SD stationed in 
Stalags is the political investigation of all camp inmates, the elimination 
and further 'treatment' (a) of all political criminal, or in some other way 
unbearable elements among them, (b) of those persons who could be used 
for the reconstruction of the occupied territories . . . Further, the 
commanders must make efforts from the beginning to seek out among 
the prisoners elements which appear reliable, regardless of whether 
there are Communists concerned or not, in order to use them for 
Intelligence purposes inside of the camp, and if advisable, later in the 
occupied territories also. By use of such informers, and by use of all other 
existing possibilities, the discovery of all elements to be eliminated 
among the prisoners must proceed step by step at once . . . 

"Above all, the following must be discovered: All important 
functionaries of State and Party, especially professional revolutionaries 
... all People's Commissars in the Red Army, leading personalities of 
the State . . . leading personalities of the business world, members of the 
Soviet Russian Intelligence, all Jews, all persons who are found to be 



361 

agitators or fanatical Communists. Executions are not to be held in the 
camp or in the immediate vicinity of the camp . . . The prisoners are to be 
taken for special treatment if possible into the former Soviet Russian 
territory." 
The affidavit of Warlimont, deputy chief of staff of the Wehrmacht, and the 
testimony of Ohlendorf, former chief of Amt III of the RSHA, and of 
Lahousen, the head of one of the sections of the Abwehr, the Wehrmacht's 
Intelligence Service, all indicate the thoroughness with which this order was 
carried out. 
The affidavit of Kurt Lindown, a former Gestapo official, states: 

". . . There existed in the prisoner of war camps on the Eastern Front 

small screening teams (Einsatz commandos), headed by lower ranking 

members of the Secret Police (Gestapo). These teams were assigned to 

the camp commanders and had the job of segregating the prisoners of 

war who were candidates for execution according to the orders that had 

been given, and to report them to the office of the Secret Police." 

On the 23d October 1941, the camp commander of the Gross Rosen 

concentration camp reported to Meuller, chief of the Gestapo, a list of the 

Soviet prisoners of war who had been executed there on the previous day. 

An account of the general conditions and treatment of Soviet prisoners of 
war during the first 8 months after the German attack upon Russia was given 
in a letter which the defendant Rosenberg sent to the defendant Keitel on the 
28th February 1942: 

"The fate of the Soviet prisoners of war in Germany is on the contrary a 
tragedy of the greatest extent ... A large part of them has starved, or 
died because of the hazards of the weather. Thousands also died from 
spotted fever. 

"The camp commanders have forbidden the civilian population to put 
food at the disposal of the prisoners, and they have rather let them starve 
to death. 

"In many cases, when prisoners of war could no longer keep up on the 
march because of hunger and exhaustion, they were shot before the eyes 
of the horrified population, and the corpses were left. 

"In numerous camps, no shelter for the prisoners of war was provided 

at all. They lay under the open sky during rain or snow. Even tools were 

not made available to dig holes or caves." 

In some cases Soviet prisoners of war were branded with a special 

permanent mark. There was put in evidence the OKW order dated the 20th 

July 1942, which laid down that: 

"The brand is to take the shape of an acute angle of about 45 degrees, 

with the long side to be 1 cm. in length, pointing upwards and burnt on 

the left buttock . . . This brand is made with the aid of a lancet available 

in any military unit. The coloring used is Chinese ink." 

The carrying out of this order was the responsibility of the military 

authorities, though it was widely circulated by the chief of the SIPO and the 

SD to German police officials for information. 



362 

Soviet prisoners of war were also made the subject of medical experiments 
of the most cruel and inhuman kind. In July 1943, experimental work was 
begun in preparation for a campaign of bacteriological warfare; Soviet 
prisoners of war were used in these medical experiments, which more often 
than not proved fatal. In connection with this campaign for bacteriological 
warfare, preparations were also made for the spreading of bacterial 
emulsions from planes, with the object of producing widespread failures of 
crops and consequently starvation. These measures were never applied, 
possibly because of the rapid deterioration of Germany's military position. 

The argument in defense of the charge with the regard to the murder and 
ill-treatment of Soviet prisoners of war, that the USSR was not a party to the 
Geneva Convention, is quite without foundation. On the 15th September 
1941, Admiral Canaris protested against the regulations for the treatment of 
Soviet prisoners of war, signed by General Reinecke on the 8th September 
1941. He then stated: 

"The Geneva Convention for the treatment of prisoners of war is not 
binding in the relationship between Germany and the USSR. Therefore 
only the principles of general international law on the treatment of 
prisoners or war apply. Since the 18th century these have gradually been 
established along the lines that war captivity is neither revenge nor 
punishment, but solely protective custody, the only purpose of which is 
to prevent the prisoners of war from further participation in the war. 
This principle was developed in accordance with the view held by all 
armies that it is contrary to military tradition to kill or injure helpless 
people . . . The decrees for the treatment of Soviet prisoners of war 
enclosed are based on a fundamentally different view-point." 
This protest, which correctly stated the legal position, was ignored. The 
defendant Keitel made a note on this memorandum: 

"The objections arise from the military concept of chivalrous warfare. 
This is the destruction of an ideology. Therefore I approve and back the 
measures." ***** 

(D) Slave Labor Policy 

Allied prisoners of war were also regarded as a possible source of 

labor. Pressure was exercised on noncommissioned officers to force them to 
consent to work, by transferring to disciplinary camps those who did not 
consent. Many of the prisoners of war were assigned to work directly related 
to military operations, in violation of Article 31 of the Geneva Convention. 
They were put to work in munition factories and even made to load bombers, 
to carry ammunition and to dig trenches, often under the most hazardous 
conditions. This condition applied particularly to the Soviet prisoners of war. 
On the 16th February 1943, at a meeting of the Central Planning Board, at 
which the defendants Sauckel and Speer were present, Milch said: 

"We have made a request for an order that a certain percentage of men 
in the Ack-Ack artillery must be Russians; 50,000 will be taken 
altogether. 30,000 are already employed as gunners. This is an amusing 
thing, that Russians must work the guns." 



363 

And on the 4th October 1943, at Posen, Himmler, speaking of the Russian 

prisoners captured early in the war, said: 

"At that time we did not value the mass of humanity as we value it 
today, as raw material, as labor. What, after all, thinking in terms of 
generations, is not to be regretted, but is now deplorable by reason of the 
loss of labor, is that the prisoners died in tens and hundreds of thousands 
of exhaustion and hunger." 
The general policy underlying the mobilization of slave labor was stated by 

Sauckel on the 20th April 1942. He said: 

"The aim of this new gigantic labor mobilization is to use all the rich 
and tremendous sources conquered and secured for us by our fighting 
armed forces under the leadership of Adolph Hitler, for the armament of 
the armed forces, and also for the nutrition of the Homeland. The raw 
materials, as well as the fertility of the conquered territories and their 
human labor power, are to be used completely to the profit of Germany 
and her Allies ... All prisoners of war from the territories of the west, as 
well as east, actually in Germany, must be completely incorporated into 
the German armament and nutrition industries . . . Consequently, it is an 
immediate necessity to use the human reserves of the conquered Soviet 
territory to the fullest extent. Should we not succeed in obtaining the 
necessary amount of labor on a voluntary basis, we must immediately 
institute conscription or forced labor . . . The complete employment of all 
prisoners of war, as well as the use of a gigantic number of new foreign 
civilian workers, men and women, has become an indisputable necessity 
for the solution of the mobilization of the labor program in this war." 



364 

DOCUMENT NO. 86 

ORDINANCE NO. 7 OF THE MILITARY GOVERNMENT OF 

GERMANY, U.S. ZONE OF OCCUPATION 

(18 October 1946, amended by ORDINANCE NO 11, 17 February 1947) 

SOURCE 
1 TWC XXIII 

NOTE 
The four Allied Powers occupying Germany after the end of hostilities in 
Europe in World War II (1939-1945) had issued Control Council Law No. 10 
on 20 December 1945 (DOCUMENT NO. 73). That Law established the 
general overall system for the trial of persons charged with the commission of 
war crimes during the hostilities. In this respect, it supplemented the London 
Agreement and Charter of 8 August 1945 (DOCUMENT NO. 68) and was 
effective throughout Occupied Germany. Ordinance No. 7 was the 
implementation of Control Council No. 10 by the Military Government of the 
U.S. Zone of Occupation. (It was later amended by Ordinance No. 11.) 
Twelve cases, generally referred to as the "Subsequent Proceedings," were 
tried pursuant to this Ordinance. (See DOCUMENT NO. 91, DOCUMENT 
NO. 94, DOCUMENT NO. 97, DOCUMENT NO. 100, AND DOCUMENT 
NO. 104, for examples of these trials.) Although established by the Military 
Government, and although designated "Military Tribunals," the three judges 
who constituted each of these Tribunals were civilians, usually members of 
state courts in the United States. 

TEXT 

Military Government — Germany 

United States Zone 

Ordinance No. 7 

organization and powers of certain military tribunals 

Article I 
The purpose of this Ordinance is to provide for the establishment of 
military tribunals which shall have power to try and punish persons charged 
with offenses recognized as crimes in Article II of Control Council Law No. 
10, including conspiracies to commit any such crimes. Nothing herein shall 
prejudice the jurisdiction or the powers of other courts established or which 
may be established for the trial of any such offences. 

Article II 
(a) Pursuant to the powers of the Military Governor for the United States 
Zone of Occupation within Germany and further pursuant to the powers 
conferred upon the Zone Commander by Control Council Law No. 10 and 
Articles 10 and 11 of the Charter of the International Military Tribunal 
annexed to the London Agreement of 8 August 1945 certain tribunals to be 
known as "Military Tribunals" shall be established hereunder. 
(b) Each such tribunal shall consist of three or more members to be desig- 
nated by the Military Governor. One alternate member may be designated to 



365 

any tribunal if deemed advisable by the Military Governor. Except as pro- 
vided in subsection (c) of this Article, all members and alternates shall be 
lawyers who have been admitted to practice, for at least five years, in the 
highest courts of one of the United States or its territories or of the District of 
Columbia, or who have been admitted to practice in the United States 
Supreme Court. 

(c) The Military Governor may in his discretion enter into an agreement 
with one or more other zone commanders of the member nations of the Allied 
Control Authority providing for the joint trial of any case or cases. In such 
cases the tribunals shall consist of three or more members as may be provided 
in the agreement. In such cases the tribunals may include properly qualified 
lawyers designated by the other member nations. 

(d) The Military Governor shall designate one of the members of the 
tribunal to serve as the presiding judge. 

(e) Neither the tribunals nor the members of the tribunals or the alternates 
may be challenged by the prosecution or by the defendants or their counsel. 

(/') In case of illness of any member of a tribunal or his incapacity for some 
other reason, the alternate, if one has been designated, shall take his place as 
a member in the pending trial. Members may be replaced for reasons of health 
or for other good reasons, except that no replacement of a member may take 
place, during a trial, other than by the alternate. If no alternate has been 
designated, the trial shall be continued to conclusion by the remaining 
members. 

(g) The presence of three members of the tribunal or of two members when 
authorized pursuant to subsection (f) supra shall be necessary to constitute a 
quorum. In the case of tribunals designated under (c) above the agreement 
shall determine the requirements for a quorum. 

(h ) Decisions and judgments, including convictions and sentences, shall be 
by majority vote of the members. If the votes of the members are equally 
divided, the presiding member shall declare a mistrial. 

Article III 

(a) Charges against persons to be tried in the tribunals established 
hereunder shall originate in the Office of the Chief of Counsel for War Crimes, 
appointed by the Military Governor pursuant to paragraph 3 of the Executive 
Order Number 9679 of the President of the United States dated 16 January 
1946. The Chief of Counsel for War Crimes shall determine the persons to be 
tried by the tribunals and he or his designated representative shall file the 
indictments with the Secretary General of the tribunals (see Article XIV, 
infra) and shall conduct the prosecution. 

(b) The Chief of Counsel for War Crimes, when in his judgment it is 
advisable, may invite one or more United Nations to designate repre- 
sentatives to participate in the prosecution of any case. 

Article IV 

In order to ensure fair trial for the defendants, the following procedure 
shall be followed: 

(a) A defendant shall be furnished, at a reasonable time before his trial, a 
copy of the indictment and of all documents lodged with the indictment, 



366 

translated into a language which he understands. The indictment shall state 
the charges plainly, concisely and with sufficient particulars to inform 
defendant of the offenses charged. 

(b) The trial shall be conducted in, or translated into, a language which the 
defendant understands. 

(c) A defendant shall have the right to be represented by counsel of his own 
selection, provided such counsel shall be a person qualified under existing 
regulations to conduct cases before the courts of defendant's country, or any 
other person who may be specially authorized by the tribunal. The tribunal 
shall appoint qualified counsel to represent a defendant who is not 
represented by counsel of his own selection. 

fd) Every defendant shall be entitled to be present at his trial except that a 
defendant may be proceeded against during temporary absences if in the 
opinion of the tribunal defendant's interests will not thereby be impaired, and 
except further as provided in Article VI fc). The tribunal may also proceed in 
the absence of any defendant who has applied for and has been granted 
permission to be absent. 

fe) A defendant shall have the right through his counsel to present evidence 
at the trial in support of his defense, and to crossexamine any witness called 
by the prosecution. 

ff) A defendant may apply in writing to the tribunal for the production of 
witnesses or of documents. The application shall state where the witness or 
document is thought to be located and shall also state the facts to be proved by 
the witness or the document and the relevancy of such facts to the defense. If 
the tribunal grants the application, the defendant shall be given such aid in 
obtaining production of evidence as the tribunal may order. 

Article V 
The tribunals shall have the power 

(a) to summon witnesses to the trial, to require their attendance and 
testimony and to put questions to them; 

(b) to interrogate any defendant who takes the stand to testify in his own 
behalf, or who is called to testify regarding another defendant; 

(c) to require the production of documents and other evidentiary material; 

fd) to administer oaths; 

fe ) to appoint officers for the carrying out of any task designated by the 
tribunals including the taking of evidence on commission; 

ff) to adopt rules of procedure not inconsistent with this Ordinance. Such 
rules shall be adopted, and from time to time as necessary, revised by the 
members of the tribunal or by the committee of presiding judges as provided 
in Article XIII. 

Article VI 

The tribunals shall 

fa) confine the trail strictly to an expeditious hearing of the issues raised by 
the charges; 

(b) take strict measures to prevent any action which will cause 
unreasonable delay, and rule out irrelevant issues and statements of any kind 



367 

whatsoever; 

fc) deal summarily with any contumacy, imposing appropriate pun- 
ishment, including the exclusion of any defendant or his counsel from some or 
all further proceedings, but without prejudice to the determination of the 
charges. 

Article VII 

The tribunals shall not be bound by technical rules of evidence. They shall 
adopt and apply to the greatest possible extent expeditious and nontechnical 
procedure, and shall admit any evidence which they deem to have probative 
value. Without limiting the foregoing general rules, the following shall be 
deemed admissible if they appear to the tribunal to contain information of 
probative value relating to the charges: affidavits, depositions, interro- 
gations, and other statements, diaries, letters, the records, findings, 
statements and judgments of the military tribunals and the reviewing and 
confirming authorities of any of the United Nations, and copies of any 
document or other secondary evidence of the contents of any document, if the 
original is not readily available or cannot be produced without delay. The 
tribunal shall afford the opposing party such opportunity to question the 
authenticity or probative value of such evidence as in the opinion of the 
tribunal the ends of justice require. 

Article VIII 

The tribunals may require that they be informed of the nature of any 
evidence before it is offered so that they may rule upon the relevance thereof. 

Article IX 

The tribunals shall not require proof of facts of common knowledge but 
shall take judicial notice thereof. They shall also take judicial notice of official 
governmental documents and reports of any of the United Nations, including 
the acts and documents of the committees set up in the various Allied 
countries for the investigation of war crimes, and the records and findings of 
military or other tribunals of any of the United Nations. 

Article X 

The determinations of the International Military Tribunal in the judgments 
in Case No. 1 that invasions, aggressive acts, aggressive wars, crimes, 
atrocities or inhumane acts were planned or occurred, shall be binding on the 
tribunals established hereunder and shall not be questioned except insofar as 
the participation therein or knowledge thereof by any particular person may 
be concerned. Statements of the International Military Tribunal in the 
judgment in Case No. 1 constitute proof of the facts stated, in the absence of 
substantial new evidence to the contrary. 

Article XI 

The proceedings at the trial shall take the following course: 

(a ) The tribunal shall inquire of each defendant whether he has received 
and had an opportunity to read the indictment against him and whether he 
pleads "guilty" or "not guilty." 

(b) the prosecution may make an opening statement. 

(c) The prosecution shall produce its evidence subject to the cross 



368 

examination of its witnesses. 

(&) The defense may make an opening statement. 

(e) The defense shall produce its evidence subject to the cross examination 
of its witnesses. 

(f) Such rebutting evidence as may be held by the tribunal to be material 
may be produced by either the prosecution or the defense. 

(g) The defense shall address the court. 

(h ) The prosecution shall address the court. 

(i) Each defendant may make a statement to the tribunal. 

(j) The tribunal shall deliver judgment and pronounce sentence. 

Article XII 

A Central Secretariat to assist the tribunals to be appointed hereunder 
shall be established as soon as practicable. The main office of the Secretariat 
shall be located in Numberg. The Secretariat shall consist of a Secretary 
General and such assistant secretaries, military officers, clerks, interpreters 
and other personnel as may be necessary. 

Article XIII 

The Secretary General shall be appointed by the Military Governor and 
shall organize and direct the work of the Secretariat. He shall be subject to 
the supervision of the members of the tribunals, except that when at least 
three tribunals shall be functioning, the presiding judges of the several 
tribunals may form the supervisory committee. 

Article XIV 

The Secretariat shall: 

(a) Be responsible for the administrative and supply needs of the Sec- 
retariat and of the several tribunals. 

(b ) Receive all documents addressed to tribunals. 

(c) Prepare and recommend uniform rules of procedure, not inconsistent 
with the provisions of this Ordinance. 

fd) Secure such information for the tribunals as may be needed for the 
approval or appointment of defense counsel. 

(e) Serve as liaison between the prosecution and defense counsel. 

(f) Arrange for aid to be given defendants and the prosecution in obtaining 
production of witnesses or evidence as authorized by the tribunals. 

(g) Be responsible for the preparation of the records of the proceedings 
before the tribunals. 

(h ) Provide the necessary clerical, reporting and interpretative services to 
the tribunals and its members, and perform such other duties as may be 
required for the efficient conduct of the proceedings before the tribunals, or 
as may be requested by any of the tribunals. 

Article XV 

The judgments of the tribunals as to the guilt or the innocence of any 
defendant shall give the reasons on which they are based and shall be final and 
not subject to review. The sentences imposed may be subject to review as 
provided in Article XVII, infra. 



369 

Article XVI 

The tribunal shall have the right to impose upon the defendant, upon 
conviction, such punishment as shall be determined by the tribunal to be just, 
which may consist of one or more of the penalties provided in Article II, 
Section 3 of Control Council Law No. 10. 

Article XVII 

(a) Except as provided in (b) infra, the record of each case shall be 
forwarded to the Military Governor who shall have the power to mitigate, 
reduce or otherwise alter the sentence imposed by the tribunal, but may not 
increase the severity thereof. 

(b ) In cases tried before tribunals authorized by Article II (c), the sentence 
shall be reviewed jointly by the zone commanders of the nations involved, 
who [may] mitigate, reduce or otherwise alter the sentence by majority vote, 
but may not increase the severity thereof. If only two nations are repre- 
sented, the sentence may be altered only by the consent of both zone com- 
manders. 

Article XVIII 

No sentence of death shall be carried into execution unless and until 
confirmed in writing by the Military Governor. In accordance with Article 
III, Section 5 of Law No. 10, execution of the death sentence may be deferred 
by not to exceed one month after such confirmation if there is reason to 
believe that the testimony of the convicted person may be of value in the 
investigation and trial of other crimes. 

Article XIX 

Upon the pronouncement of a death sentence by a tribunal established 
thereunder and pending confirmation thereof, the condemned will be 
remanded to the prison or place where he was confined and there be 
segregated from the other inmates, or be transferred to a more appropriate 
place of confinement. 

Article XX 

Upon the confirmation of a sentence of death the Military Governor will 
issue the necessary orders for carrying out the execution. 

Article XXI 

Where sentence of confinement for a term of years has been imposed the 
condemned shall be confined in the manner directed by the tribunal imposing 
sentence. The place of confinement may be changed from time to time by the 
Military Governor. 

Article XXII 

Any property declared to be forfeited or the restitution of which is ordered 
by a tribunal shall be delivered to the Military Governor, for disposal in 
accordance with Control Council Law No. 10, Article II (3). 

Article XXIII 

Any of the duties and functions of the Military Governor provided for 
herein may be delegated to the Deputy Military Governor. Any of the duties 
and functions of the Zone Commander provided for herein may be exercised 
by and in the name of the Military Governor and may be delegated to the 
Deputy Military Governor. 



370 



This Ordinance becomes effective 18 October 1946. 
By order of Military Government. 



MILITARY GOVERNMENT— GERMANY 
ORDINANCE NO. 11 

AMENDING MILITARY GOVERNMENT ORDINANCE NO. 7 OF 18 
OCTOBER 19>>6, ENTITLED "ORGANIZATION AND POWERS OF 
CERTAIN MILITARY TRIBUNALS" 

Article I 

Article V of Ordinance No. 7 is amended by adding thereto a new 
subdivision to be designated "(g)", reading as follows: 

"(g) The presiding judges, and, when established, the supervisory 
committee of presiding judges provided in Article XIII shall assign the cases 
brought by the Chief of Counsel for War Crimes to the various Military 
Tribunals for trial." 

Article II 

Ordinance No. 7 is amended by adding thereto a new article following 
Article V to be designated Article V-B, reading as follows: 

"(a ) A joint session of the Military Tribunals may be called by any of the 
presiding judges thereof or upon motion, addressed to each of the Tribunals, 
of the Chief of Counsel for War Crimes or of counsel for any defendant whose 
interests are affected, to hear arguments upon and to review any inter- 
locutory ruling by any of the Military Tribunals on a fundamental or 
important legal question either substantive or procedural, which ruling is in 
conflict with or is inconsistent with a prior ruling of another of the Military 
Tribunals. 

"(b) A joint session of the Military Tribunals may be called in the same 
manner as provided in subsection (a ) of this Article to hear argument upon 
and to review conflicting or inconsistent final rulings contained in the 
decisions or judgments of any of the Military Tribunals on a fundamental or 
important legal question, either substantive or procedural. Any motion with 
respect to such final ruling shall be filed within ten (10) days following the 
issuance of decision or judgment. 

"(c) Decisions by joint sessions of the Military Tribunals, unless thereafter 
altered in another joint session, shall be binding upon all the Military 
Tribunals. In the case of the review of final rulings by joint sessions, the 
judgments reviewed may be confirmed or remanded for action consistent 
with the joint decision. 

"(d) The presence of a majority of the members of each Military Tribunal 
then constituted is required to constitute a quorum. 

"(e) The members of the Military Tribunals shall, before any joint session 
begins, agree among themselves upon the selection from their number of a 
member to preside over the joint session. 

"(f) Decisions shall be by majority vote of the members. If the votes of the 



371 

members are equally divided, the vote of the member presiding over the 
session shall be decisive." 

Article III 

Subdivisions (g) and (h) of Article XI of Ordinance No. 7 are deleted; 
subdivision (i) is relettered "(h)"; subdivision (j) is relettered u (i)"\ and a new 
subdivision, to be designated "(g)", is added, reading as follows: 

"(g) The prosecution and defense shall address the court in such order as 
the Tribunal may determine." 
This Ordinance becomes effective 17 February 1947. 
(By order of the Military Government) 






372 

DOCUMENT NO. 87 

REX v. PERZENOWSKI, REX v. WOLF, REX v. BUSCH, 

REX v.MUELLER 
(Supreme Court, Appellate Division, Alberta, Canada, 

24 October 1946) 

SOURCES 
[1947] 1D.L.R. 705 
3Can.C.C. 254 
13 Ann. Dig. 300 

NOTE 

This is the earliest of a series of cases presented herein (DOCUMENT NO. 
92, DOCUMENT NO. 130, DOCUMENT NO. 137, and DOCUMENT NO. 
139), all of which are concerned with various aspects of the same problem: the 
extent to which the national law of the prisoner of war continues to be 
applicable to his actions while he is in that status. Article 82(1) of the 1949 
Geneva Prisoner-of-War Convention (DOCUMENT NO. 108), like its 
predecessor provisions, Article 45(1) of the 1929 Geneva Prisoner-of-War 
Convention (DOCUMENT NO. 49) and Article 8(1) of the Regulations 
annexed to the 1907 Hague Convention IV (DOCUMENT NO. 33) and to the 
1899 Hague Convention II (DOCUMENT NO. 28), very clearly makes the 
prisoner of war "subject to the laws, regulations, and orders in force in the 
armed forces of the Detaining Power"; but does this mean, as is frequently 
contended, that this is to the exclusion of his own military law? The cases have 
uniformly answered that question in the negative. The real problem will arise 
when a valid law of the Detaining Power requires a prisoner of war to do some 
act which his own military law prohibits. While such a situation is 
conceivable, it is, fortunately, rather rare. (The cases which came closest to 
presenting this situation were the post-Korea courts-martial of former 
American prisoners of war for misconduct while in the Communist prisoner- 
of-war camps in North Korea, assuming, of course, that what the 
Communists required of prisoners of war represented "valid law," an 
assumption which it is frequently extremely difficult to make. See, for 
example, DOCUMENT NO. 131 and DOCUMENT NO. 134.) The present 
case involved the murder of a fellow German prisoner of war in a Canadian 
prisoner-of-war camp after the decision to do so was apparently reached by a 
sort of consensus of certain other German prisoners of war who had decided 
that the victim was a Communist and not to be trusted. (See DOCUMENT 
NO. 92. ) (The portion of the decision dealing with the jurisdictional problem is 
included below because the accused prisoners of war contended that their act 
was excusable as an "act of war.") 

EXTRACTS 

The judgment of the Court was delivered by 



373 

Harvey C.J. A.: — These are appeals from convictions for murder after 
separate jury trials before the Chief Justice of the Trial Division and verdicts 
of guilty. 

It was only one murder and as the facts were the same and the evidence 
substantially so, the appeals were all argued together. 

The appellants are all German prisoners of war who, at the time of the 
murder, September 10, 1944, were confined in a prisoners of war camp at 
Medicine Hat in this Province, and the murder was that of a fellow German 
prisoner of war. 

The argument most strenuously advanced by appellants' counsel was that 
our Court had no jurisdiction to try them for the offence, that their act was an 
act of war, and that in any event only the military authorities had jurisdiction 
unless they transferred the jurisdiction to the civil Court. 

These matters were considered by the Ontario Court of Appeal in R. v. 
Brosig, [1945], 2 D.L.R. 232, O.R. 240, 83 Can.C.C. 199, and by this Division 
in R. v. Kaehler, [1945] 3 D.L.R. 272, 83 Can, C.C. 353, in both of which the 
offence was that of theft, and it was in both of these cases definitely held that 
the civil Courts had jurisdiction there being no difference in that respect 
between an offence by a prisoner of war and one by a member of our own 
armed forces, and that equally the liability was the same. 

As regards the offence of murder, the case is even stronger. Section 69 of 
the Militia Act, R.S.C. 1927, c. 132, declares the Imperial Army Act, 1881,44 
& 45 Vict., c. 48, to be applicable as if enacted by the Canadian Parliament, 
and by s. 41 of that Act, it is provided that: "A person subject to military law 
shall not be tried by court martial for . . . murder . . . committed in the 
United Kingdom" or in any place within Her Majesty's Dominions unless on 
active service or unless committed more than a hundred miles from a 
competent civil Court. 

It is further provided in the same section that: "A person subject to military 
law when in Her Majesty's dominions may be tried by any competent civil 
court for any offence for which he would be triable if he were not subject to 
military law." 

It is clear, therefore, that not merely is this Court qualified to try the 
offence, but it is the only tribunal so qualified. 

Whatever might have been argued as to the offence dealt with in the 
Kaehler case in an attempt to escape from the custody of its enemies by a 
prisoner or war, being an act of war, which, however, was held to be 
untenable, is no basis whatever for the contention that the killing of a fellow 
prisoner of war is an act of war. 

For the common law apart from the statute reference may be made to R. v. 
Depardo (1807), 1 Taunt. 26, 127 E.R. 739, a trial before Lord Mansfield C.J. 
in which reference is made to the case of Francois Antoine Sauvajot, a French 
prisoner of war, who was indicted for the murder of Mosteau, another French 
prisoner of war, on board the "Triton East Indiaman", upon the high seas at 
the entrance of the English Channel in September 1799, who was convicted of 
manslaughter and burnt in the hand. 



374 

There were several thousand prisoners of war in the camp and the 
Canadian military authorities permitted them a measure of self-government, 
and they had their own organization with officers and sub-officers. The 
appellant Perzenowski was a sub-officer with supervision over a group that 
included the other three appellants. It was rumoured that the murdered 
prisoner of war named Lehmann, who was employed as a teacher, was a 
communist, or that he was engaged in a plot to change the management, or 
something of the sort, that he was thought to be a traitor to his fellows and to 
his country. The circumstances of the killing are succinctly stated in a con- 
fession made by the appellant Perzenowski. He made and signed two state- 
ments, one which he wrote in his own handwriting by himself, being 
apparently alone, which was in German, and signed in the presence of a peace 
officer, the other written in English by one of the peace officers and signed by 
Perzenowski in the presence of peace officers. There is little difference 
between them in substance, but the latter has a little more detail. It relates 
the events as follows: 

"I have fully understood from Corporal Bull that any statement which I 
have made previously is to be disregarded by me at this time. I also fully 
understand that the fact that I may have been acting under orders would not 
excuse me under the Canadian laws. I freely admit my guilt in the killing of 
Lehmann and I wish to take the full responsibility from those who were acting 
under my orders. I did not receive any order to kill Lehmann but after 
discussing the matter with others I made my own decision and carried out my 
plans myself. When I decided at that time to undertake this deed I was 
convinced that I had acted according to the German Military law. It was also 
clear to me that the Canadian authorities would consider me as a murderer. 
Since the Canadian authorities have received information as to my partici- 
pation I will take the full responsibility. The decision for the first time came 
under consideration on the Saturday before the big transfer from Medicine 
Hat to Neys, which was during September, 1944. On the Sunday morning the 
final decision was made by me. . . . 

In addressing the jury appellants' counsel urged them if they found the 
appellants guilty, to find them guilty only of manslaughter, the belief that 
Lehmann was a traitor being sufficient provocation to reduce it from murder 
to manslaughter. The trial Judge directed the jury that any such belief could 
not be such provocation for the deliberate acts resulting in the killing of 
Lehmann as to reduce it from murder to manslaughter under our law, and 
while he might have left it at that he gave the appellants the advantage of 
explaining to the jury what is such provocation under our law. 

On the evidence before the jury there was clearly nothing that would 
justify a verdict of manslaughter. 

Objection was also taken that the appellants at least other than 
Perzenowski, believed they were compelled by their military law to comply 
with the orders given them and that the jury should have been told that that 
furnished some excuse or at least some extenuation. As the trial Judge told 
them, it could not furnish any excuse or justification and as far as extenuation 












375 

is concerned that was not a matter for either Judge or jury, and if any 
consideration is to be given to it, it is for the executive not the judicial branch 
of government. As Perzenowski admitted he knew he was committing 
murder and the others probably knew it as well. 

There were some other minor grounds of appeal which, however, were all 
considered unsound and do not call for further observations. 

None of the grounds of appeal have validity, but even if there had been 
error, on the evidence the only legitimate verdict was the one that was given 
and all the trials were conducted with the utmost fairness. Indeed, after the 
verdict of guilty against Wolf, when he was asked if he had anything to say 
before sentence, he said: 

Your Lordship and Gentlemen of the Jury: I stand here as a soldier of a 
foreign power which, until recently, was at war with Canada. I could not 
place full confidence in this Court, but, through sitting in and listening to 
everything, everything the witness said, and the evidence, it was shown to 
me and has fully convinced me that this trial was very fair." 

The appeals are all dismissed. 

Appeals dismissed. 



376 

DOCUMENT NO. 88 

RESOLUTION 95(1), "AFFIRMATION OF THE PRINCIPLES OF 

INTERNATIONAL LAW RECOGNIZED BY THE CHARTER OF THE 

NURNBERG TRIBUNAL," ADOPTED BY THE GENERAL 

ASSEMBLY OF THE UNITED NATIONS 

(11 December 1946) 

SOURCE 
1 Djonovich 175 

NOTE 
This resolution was adopted by the General Assembly of the United 
Nations just a short time after the issuance of the opinion and judgment in the 
trial of the major German war criminals by the International Military 
Tribunal (IMT) sitting at Nuremberg. The resolution "affirmed" the 
principles of international law recognized by the Charter of the "Nurnberg 
Tribunal" (DOCUMENT NO. 68) and by the judgment of the Tribunal 
(DOCUMENT NO. 85). Then, in effect, it directed its Committee on the 
Codification of International Law, established on the same day, to 
"formulate" those principles. This was not done by the Committee and the 
following year the newly-created and not-yet-functioning International Law 
Commission was directed to do so (DOCUMENT NO. 96). The International 
Law Commission complied with the directive of the General Assembly, 
submitting its "formulation" of the principles to the General Assembly in 
1950. (See DOCUMENT NO. Ill and DOCUMENT NO. 114.) 

TEXT 

The General Assembly, 

Recognizes the obligation laid upon it by Article 13, paragraph 1, sub- 
paragraph a, of the Charter, to initiate studies and make recommendations 
for the purpose of encouraging the progressive development of international 
law and its codification; 

Takes note of the Agreement for the establishment of an International 
Military Tribunal for the prosecution and punishment of the major war 
criminals of the European Axis signed in London on 8 August 1945, and of the 
Charter annexed thereto, and of the fact that similar principles have been 
adopted in the Charter of the International Military Tribunal for the trial of 
the major war criminals in the Far East, proclaimed at Tokyo on 19 January 
1946; 

Therefore, 

Affirms the principles of international law recognized by the Charter of the 
Nurnberg Tribunal and the judgment of the Tribunal; 

Directs the Committee on the codification of international law established 
by the resolution of the General Assembly of 11 December 1946, to treat as a 
matter of primary importance plans for the formulation, in the context of a 



377 

general codification of offences against the peace and security of mankind, or 
of an International Criminal Code, of the principles recognized in the Charter 
of the Nurnberg Tribunal and in the judgment of the Tribunal. 



378 

DOCUMENT NO. 89 

TRIAL OF TANABE KOSHIRO 

(Netherlands Temporary Court-Martial, Macassar, 

Celebes, 5 February 1947) 

SOURCES 
11LRTWC1 
14 Ann. Dig. 210 

NOTE 
Article 31(1) of the 1929 Geneva Prisoner-of-War Convention 
(DOCUMENT NO. 49) provided that prisoner-of-war labor "shall have no 
direct relation with war operations" and specifically prohibited the use of such 
labor "for manufacturing and transporting arms or munitions of any kind, or 
for transporting material intended for combatant units." The present case is a 
classic example of the violation of these provisions. (See also, DOCUMENT 
NO. 101, under the rubric "Illegal Employment.") At times the applicability 
of the prohibitions to a particular act was difficult of determination. (See, for 
example, DOCUMENT NO. 79 and DOCUMENT NO. 100.) Article 50 of the 
1949 Geneva Prisoner-of-War Convention (DOCUMENT NO. 108) attempts 
to eliminate the problems encountered in this area in the past by a completely 
new approach to the matter. Its overall efficacy remains to be tested. 

EXTRACTS 
A. OUTLINE OF THE PROCEEDINGS 
The accused, Tanabe Koshiro, was a 1st Lieutenant of the Japanese Navy, 
and at the time of the alleged crimes, officer commanding the Sukei (Coast 
Guard) of 23 Special Naval Base Forces at Macassar, Netherlands East 
Indies. He was tried for violations of the rules of warfare concerning the 
treatment of Dutch and other Allied prisoners of war at Macassar. 

1. THE CHARGES 

The prosecution charged the accused with having "as a subject of the 
enemy power, Japan, at Macassar, about August, 1944, therefore in time of 
war," committed two types of offences: 

"(a) unnecessarily exposed about twelve hundred Dutch, Americans 

British and Australian prisoners of war to acts of war"; 
"(b ) employed prisoners of war in war work;; in that the accused "had an 
ammunition depot built by prisoners of war at a distance "of 
approximately 50 yards from the prisoner-of-war camp" and 
"ordered the depot to be filled with ammunition". 
The prosecution asked the court to find the accused guilty of "intentionally 
and unnecessarily exposing prisoners of war to acts of war", and of 
"employing prisoners of war on war work, and to convict him to 5 years' 
imprisonment. 

2. FACTS AND EVIDENCE 

The accused pleaded not guilty. According to the evidence submitted to the 



379 

court, which included the testimony of Dutch and Japanese witnesses heard 
during the proceedings, the facts were as follows: 

In July or August, 1944, a large ammunition depot was built opposite the 
prisoners-of-war camp at Macassar, and was located about 50 yards from the 
fence surrounding the camp. The depot was built by the prisoners from the 
camp on the order of the accused. The witnesses heard on this last point 
included the Japanese commandant of the prisoners-of-war camp. The 
ammunition stored in the depot was brought by Japanese soldiers belonging 
to the Sukei (Coast Guard) under the accused's command. 

In view of the proximity of the depot, air-raid shelters were built in the 
camp, but were inadequate. They were made of rotten trunks of coconut 
palms and old timber, with a covering of thin sheets of old zinc. 
3. THE JUDGMENT 

The accused was found guilty of both charges, namely, of "unnecessarily 
subjecting prisoners of war to danger" and of "employing prisoners of war in 
an unlawful way". He was sentenced to 7 years' imprisonment. 



380 

DOCUMENT NO. 90 

TREATY OF PEACE BETWEEN THE ALLIED AND 
ASSOCIATED POWERS, ON THE ONE PART, AND HUNGARY, 

ON THE OTHER PART 
(Paris, 10 February 1947) 

SOURCES 
41UNTS135 
61 Stat. 2065 
4 Bevans 453 
148BFSP363 

NOTE 
The 1945 Agreement concerning an Armistice between the Allied Powers 
and Hungary (DOCUMENT NO. 64), while providing for the immediate 
release of all Allied prisoners of war held by Hungary, contained no provision 
for the disposition of Hungarian prisoners of war held by the various Allied 
Powers. Official action with respect to these latter prisoners of war was only 
taken in this Treaty of Peace, entered into more than two years later; and, as 
will be seen, even the provisions contained in the Treaty of Peace required 
the reaching of further agreements between Hungary and the several 
Detaining Powers, with consequent additional delay. The Hungarian 
Armistice Agreement and the Treaty of Peace are included herein, not 
because they are in any way unusual, but rather because they were typical of 
a procedure which was very generally followed and which was the major 
reason for the inclusion in Article 118 of the 1949 Geneva Prisoner-of-War 
Convention (DOCUMENT NO. 108) of the requirement for the release and 
repatriation of all prisoners of war (except those covered by Article 119(5) of 
the Convention), whether held by the victor or by the vanquished, "without 
delay after the cessation of active hostilities." (Concerning India's violation of 
this specific provision of the 1949 Convention, see DOCUMENT NO. 167.) 

EXTRACT 

Article 21 

1. Hungarian prisoners of war shall be repatriated as soon as possible, in 
accordance with arrangements agreed upon by the individual Powers 
detaining them and Hungary. 

2. All costs, including maintenance costs, incurred in moving Hungarian 
prisoners of war from their respective assembly points, as chosen by the 
Government of the Allied or Associated Power concerned, to the point of 
their entry into Hungarian territory, shall be borne by the Hungarian 
Government. 



381 

DOCUMENT NO. 91 

U.S. v. ERHARD MILCH 
(Case No. 2, U.S. Military Tribunal, Nuremberg, 16-17 April 1947) 

SOURCE 
2 TWC 773 

NOTE 
This case involved one of the major problems which arose as a result of Nazi 
disregard of specific and unambiguous provisions of the law of war — in this 
instance, the provisions contained in Article 6(1) of the Regulations annexed 
to the 1907 Hague Convention IV (DOCUMENT NO. 33) and Article 31(1) of 
the 1929 Geneva Prisoner-of-War Convention (DOCUMENT NO. 49) 
prohibiting the use of prisoner-of-war labor on work having "connection with 
the operations of war" or having "direct relations with war operations," 
respectively. (The official French versions of these two provisions are 
identical except for the addition of the word "direct" in the latter.) The 1929 
Convention additionally prohibited the "use [of] prisoners [of war] for 
manufacturing and transporting arms or munitions of any kind, or for 
transporting material intended for combatant units." Field Marshal Milch, 
who had the responsibility of keeping the Luftwaffe equipped and supplied 
during World War II (1939-1945), was accused of violating those provisions. 
For other cases involving the use of prisoners of war on prohibited work, see 
DOCUMENT NO. 85, under the rubric "Slave Labor Policy"; DOCUMENT 
NO. 101, under the rubric "Illegal Employment"; and DOCUMENT NO. 89. 
But see DOCUMENT NO. 100. (Although this is "Case No. 2" of the U.S. 
Military Tribunal, it was the first case tried and decided so that it is 
appropriate to mention here, as well as in the NOTE on "Case No. 1" 
(DOCUMENT No. 94) that there were 12 cases, referred to in general as the 
"Subsequent Proceedings," tried by the U.S. Military Tribunals at 
Nuremberg; and that although these Military Tribunals were established by 
the military authorities in the U.S. Zone of Occupation of Germany pursuant 
to Control Council Law No. 10 (DOCUMENT NO. 73), the judges composing 
each of these Tribunals were American civilians, mostly from the benches of 
state courts.) 

EXTRACTS 
COUNT ONE 

Count one of the indictment charges the defendant with the commission of 
specified war crimes, as defined by Article II of Control Council Law No. 10, 
in that he was a principal in, accessory to, ordered, abetted, took a consenting 
part in and was connected with, plans and enterprises involving slave labor 
and deportation to slave labor, resulting in the enslavement, torture and 
murder of civilians of foreign countries. The indictment further charges that 
he similarly participated in the use of prisoners of war in war operations and 



382 

work having a direct relation to war operations, resulting in inhuman 
treatment and death to captured members of the armed forces opposed to 
Germany. The indictment alleges that these acts were in violation of 
international law and the recognized principles of civilized warfare and in 
specific violation of numerous treaties and conventions to which Germany 
was a party. 

It is claimed by the prosecution that the defendant's responsibility for 
these alleged crimes arises from his activities in three capacities (1) as 
Aircraft Master General (Generalluftzeugmeister); (2) member of the Central 
Planning Board; and (3) chief of the Jaegerstab. The Central Planning Board 
was established by a decree of the Furhrer, dated 29 October 1943. That 
decree fitted the task of production of material goods of every kind into the 
framework of the Four Year Plan and charged the Central Planning Board 
with the procurement and distribution of material of every description. The 
Board consisted of Reich Minister Speer, Under Secretary Koerner, and the 
defendant. On 1 March 1944, the Jaegerstab was established, consisting of 
Speer, Saur (a subordinate of Speer), and the defendant. The Jaegerstab 
concerned itself exclusively with the material needs of the Luftwaffe, and 
was headed, naturally, by the defendant. It became apparent that neither of 
these two bodies could adequately deal with the problems of production 
without constantly dealing with the question of labor supply. Meetings of the 
Central Planning Board were held at least weekly and the minutes of those 
meetings which were offered in evidence show a constant and unremitting 
concern with the problem of labor . . . 

The next question to be answered is whether or not the defendant Milch in 
this case knew that foreign slave labor and prisoners of war were being 
procured by Sauckel and used in the aircraft industry, which the defendant 
controlled. The defendant's own words, as gleaned from the minutes of the 
Central Planning Board and from his own testimony, conclusively answer 
this question in the affirmative. He testified that he knew that prisoners of 
war were employed in the airplane factory at Regensburg and that some 
twenty thousand Russian prisoners of war were used to man antiaircraft guns 
protecting the various plants. He stated further that he saw this type of war 
prisoners manning 8.8 and 10.5 [centimeter] antiaircraft guns at airplane 
factories in Luftgau 7 near Munich. Sauckel, the Plenipotentiary for Labor, 
sat in on at least fifteen meetings of the Central Planning Board, over which 
the defendant presided, and discussed at great length and in elaborate detail 
the problems involved in procuring sufficient foreign laborers for the German 
war effort. He frankly disclosed the cruel and barbarous methods used in 
forcing civilians of the eastern countries into the Reich for war work. He 
related the difficulties, and resistance which confronted him and the methods 
which he used and proposed to use in forcibly rounding up and transporting 
foreign workers. The advisability of using prisoners of war and inmates of 
concentration camps in the Luftwaffe was frankly discussed, with the 
defendant offering advice and suggestions as to the most effective methods to 
be used. In the face of this overwhelming evidence, disclosing page after page 



383 

of discussion between Speer, Sauckel, and the defendant in which the 
defendant urged more severe and coercive methods of procuring foreign 
labor from the East, it would violate all reason to conclude that he had no 
knowledge of the source of this labor or of the methods used in procuring it. 

At the 53rd meeting of the Central Planning Board (16 February 1944), the 
defendant stated: 

"Our best new engine is made 88 percent by Russian prisoners of war and 
the other 12 percent by German men and women." 

Instances could be multiplied in which the defendant not only listened to 
stories of enforced labor from eastern civilians and other prisoners of war and 
thereby became aware of the methods used in procuring such labor, but in 
which he himself urged more stringent and coercive means to supplement the 
dwindling supply of labor in the Luftwaffe. As Germany's plight became more 
desperate, her loss of military personnel presented an alarming dilemma, 
resulting in the defection of thousands of workmen to the armed forces. This 
resulted in a shifting of the dilemma to industry, and spurs were put to the 
labor procurement officers to fill the widening gap in the industrial labor 
ranks. Every branch of war industry constantly clamored for replacements 
and each vied with the others for a greater quota from the labor pool. 
Confronted by the desperate situation the labor procurement officers, headed 
by the implacable Sauckel, cast aside all restraint and set out systematically 
to herd into the Reich any human being who could contribute to Germany's 
war effort. Under Sauckel's whip, no means however harsh were overlooked, 
and no person however exempt was spared. 

The defense on this count is ingenious but unconvincing. As to the use of 
prisoners of war, the defendant testified that he had been advised by some 
unidentified person high in the National Socialist Councils that it was not 
unlawful to employ prisoners of war in war industries. The defendant was an 
old and experienced soldier, and his testimony revealed that he was well 
acquainted with the provisions of the Geneva and Hague Treaties on this 
subject, which are plain and unequivocal. In the face of this knowledge, the 
advice which he claims to have received should have raised grave suspicions 
in his mind. Presenting an entirely different aspect to his defense, he testifies 
that many of the Russian prisoners of war volunteered to serve in the war 
industries and apparently enjoyed the opportunity of manufacturing 
munitions to be used against their fellow countrymen and their allies. Other 
Russian prisoners of war, he states, were discharged as such and im- 
mediately enrolled as civilian workers. The photographs introduced in 
evidence, however, show that they still retained their Russian army 
uniforms, which makes their status as civilians suspect. Be that as it may, it 
does not adequately answer the charge that hundreds of thousands of Polish 
prisoners of war were cast into concentration camps and parceled out to the 
various war factories, nor the further fact that thousands of French prisoners 
of war were compelled to labor under the most harrowing conditions for the 
Luftwaffe. 

The Tribunal therefore finds the defendant guilty of the war crimes 



384 

charged in count one of the indictment, to wit, that he was a principal in, 
accessory to, ordered, abetted, took a consenting part in and was connected 
with, plans and enterprises involving slave labor and deportation to slave 
labor of the civilian populations of countries and territories occupied by the 
German armed forces, and in the enslavement, deportation, ill-treatment and 
terrorization of such persons; and further that the defendant was a principal 
in, accessory to, ordered, abetted, took a consenting part in, and was 
connected with, plans and enterprises involving the use of prisoners of war in 
war operations and work having a direct relation to war operations. 



385 

DOCUMENT NO. 92 

REX v. WERNER AND ANOTHER 
(Union of South Africa, Supreme Court, Appellate Division, 

20 May 1947) 

SOURCE 
[1947] 2S.A.L.R. 828 
14 Ann. Dig. 202 

NOTE 
This is another of the series of cases (see also DOCUMENT NO. 87, 
DOCUMENT NO. 130, DOCUMENT NO. 137, and DOCUMENT NO. 139) 
concerned with the problem of the extent to which the national military law of 
the prisoner of war continues to be applicable to his actions while he is in that 
status. This case involves the "execution" murder of a German prisoner of 
war by his fellows in a prisoner-of-war camp in South Africa after he had been 
"sentenced" to death by a prisoner-of-war "court," the other prisoners of war 
having reached the decision that he was a spy who might reveal the presence 
of several German officers who were in concealment in preparation for an 
attempt to escape. In addition to the problem of the applicability of national 
military law to prisoners of war, the issue of the defense of superior orders 
was also presented. Despite numerous efforts to clarify this latter problem 
(see, for example, DOCUMENT NO. Ill), no solution so far proposed can be 
said to have eliminated it, or even to have been universally accepted. (For 
evidence of the continued existence of the problem, see the three opinions in 
the case of U.S. v. C alley (DOCUMENT NO. 171).) 

EXTRACTS 
Watermeyer, C.J.: The appellants were charged in the Natal Provincial 
Division with the murder of one Helmuth Haensel. They were tried before 
Mr. Justice Carlisle, sitting with two assessors, convicted and sentenced 
to imprisonment with hard labour for five years. 

From the record it appears that the appellants and Haensel were all 
prisoners-of-war who had been captured in North Africa, and they were 
being detained in a camp near Pietermaritzburg; that on 6th June, 1942, the 
appellants together with certain other prisoners caused the death of Haensel 
by placing a rope round his neck and hanging him to a tent pole. The events 
which led up to the killing of Haensel are set out in the judgment of the trial 
court as follows: 

"The two accused were members of a batch of about one thousand 
prisoners-of-war brought to Pietermaritzburg in June, 1942. In this 
batch, which was the second to arrive here, there were no officers. After 
their arrival No. 1 accused was elected camp leader by his fellow 
prisoners and his appointment as such was confirmed by the officer 
commanding the P.O. W. camp. This second lot of prisoners occupied the 



386 



camp immediately after the first lot, consisting of officers and men, had 
been removed in transit for Canada. Some officers of this batch, how- 
ever, did not go with it. They had had a dugout made in the music pavilion 
and hid in it intending to escape if possible. The existence of this dugout 
and the absence of these officers was not discovered by the Union 
soldiers in the camp. Two of these officers were Major von Lubke and 
Lieut, von Grabert, both of whom remained hidden in the camp. They 
were still hiding there when the second batch of prisoners arrived. It was 
not long before their presence became known to No. 1 accused and to the 
other prisoners-of-war. There is no reason to doubt No. 1 accused's 
evidence that he was ordered by Major von Lubke to see to it that the 
presence of these officers should be kept secret. Soon after this the 
deceased Haensel re-arrived at Pietermaritzburg; he had tried to escape 
from a ship at the Cape by jumping overboard, had been re-captured and 
had, after a spell in hospital, been returned to the camp. There is 
sufficient evidence on the record to show that Haensel's loyalty was 
deeply suspected by his fellow prisoners. No. 1 accused said, and there is 
no reason to disbelieve him, that Major von Lubke had heard of 
Haensel's arrival in the hospital and had given orders to No. 1 to see to it 
that the German prisoners-of-war in hospital should be careful of their 
talk in Haensel's presence. On Haensel's arrival in camp, which was on 
the forenoon of the 6th June, when he was discharged from hospital, 
there was a demonstration by some of the prisoners-of-war against him. 
The current opinion amongst the P.O.W.'s appears to have been that 
Haensel was looked upon as a spy, as a traitor and as a British agent. 
There is no evidence, naturally, upon which the Court can say whether or 
not this estimate of Haensel was justified but it seems reasonably clear 
that it was held by the majority of the prisoners. Now No. 1 accused, as 
the camp leader, was, of course, in close touch with the two hidden 
officers. He says that on the morning of the 6th June he was sent for and 
found both officers in his tent. He was told that the presence of Haensel 
was a source of danger and that if Haensel had been sent as a spy it might 
lead to the discovery of the two officers. Major von Lubke said that he 
intended to ascertain the truth of these rumours by calling before him 
such men in the camp who were in a position to depose what they knew 
about Haensel. These men were brought in and were told by Major von 
Lubke that they were to give evidence upon oath as they would do in 
Germany; that they were not to repeat hearsay statements but to confine 
their statements to what they personally knew. No. 1 says that the 
Major further told the men that they would have to repeat this evidence 
in Germany when they got back there. The evidence of these men was 
then heard. The conclusion of the matter was that Major von Lubke gave 
his decision. It was that on his responsibility and by his order Haensel 
should be executed that night. He ordered No. 1 to carry out the 
sentence that evening and to get men to assist him to do so. Some time 
that day, after this sentence had been pronounced and the order given, 



387 

No. 1, who was friendly with Regimental Sergeant Major Smale, a 
member of the Union forces in the camp, asked Smale whether it would 
be possible to have Haensel moved out of the camp because of his 
unpopularity with the other men. Smale referred this request to the 
camp commandant who refused it. In his evidence, and there is no reason 
to disbelieve it, No. 1 accused said that he made this request entirely on 
his own responsibility and without the knowledge or authority of either 
of the two officers. He thought that it would have met with the full 
approval of Major von Lubke had that officer known that it was to be 
made. It is, I think, clear that No. 1 desired, if possible, to have Haensel 
moved out of the camp even temporarily for by his removal any danger of 
his discovering and reporting the presence of the two officers would 
disappear. It is, in our opinion, a fair inference that the motive behind 
this request made by No. 1 accused was to avoid the commission of any 
violence upon Haensel. That evening Haensel was brought into the 
music pavilion in accordance with Major von Lubke's instructions. Major 
von Lubke was not there. Those present were Lieut, von Grabert, the 
two accused and some others. Haensel was overpowered, gagged and 
throttled. His body was hung by the neck from the tent pole, into which 
two nails had been driven to retain the rope. All the arrangements for 
this atrocious deed were made by No. 1 accused. The dead body was 
found soon after. No foul play was suspected by the Defence Force 
officers or, if it was, no proof of it was available. No. 1 accused had seen to 
that by telling the prisoners of war at roll call early next morning that if 
any questions were put to them about Haensel they were to reply by 
saying that they knew nothing about the matter. It was only after the 
cessation of hostilities between His Majesty's Forces and those of the 
German Reich that any knowledge of the true facts was obtained." 
After conviction the following question of law was reserved for the con- 
sideration of this Court: 

"Whether there is legal evidence on the record on which a reasonable 
man could properly convict Wener and Wallat of murder. " 
That stereotyped form of reservation does not disclose the real question of 
law which counsel for the appellant sought to raise. The main contention 
which he advanced was that the killing of Haensel was not murder because 
the accused acted under orders given to them by a superior officer, which 
they thought they were under a duty as soldiers to obey. 

Before considering that contention it is necessary to be clear as to the legal 
principles which must be applied, in particular as to the system of law which 
governs the matter. 

With regard to the system of law to which the accused were subject, it 
appears from Article 45 of the Geneva Convention of 27 July, 1929, that, while 
they were prisoners-of-war, they were subject to the laws, regulations and 
orders in force in the armed forces of the detaining power. Consequently, in 
terms of that convention, the legal quality of their acts must be determined by 
the laws which at that time regulated the conduct of the Union forces. 



388 

Moreover, apart from the Geneva Convention, since criminal law is ter- 
ritorial, the question whether the acts done by them in South Africa con- 
stituted a crime, and, if so, what crime, must be decided by the law of South 
Africa. 

Now it is clear that according to the law of South Africa, including in that 
law the statutory provisions and rules which govern the South African forces, 
the so-called trial of Haensel by Major von Lubke was entirely illegal and the 
order given by him that Haensel should be executed was an unlawful order for 
which no legal justification exists in our law. Consequently the execution of 
Haensel under that order was an unlawful homicide according to the law of 
South Africa. The accused took part in that homicide and are therefore 
criminally responsible for it unless their actions were in some way justified or 
excused. 

It was contended on their behalf that they were excused because they acted 
in consequence of the orders given which they were bound to obey, or, at any 
rate, thought they were bound to obey. 

In dealing with the duties of a soldier to obey the orders of a superior officer 
the learned Judge who gave the judgment accepted the law laid down in Reg. 
v. Smith (17, S.C. 561) as governing the situation. In that case Solomon, J. 
said: 

"After looking at authorities quoted from the bar and such other 
authorities as have been accessible, it seems to me that the rule laid down 
in the 'Manual of Military Law' is a reasonable and proper rule to apply in 
such a case as this. This states that if the commands are obviously illegal, 
an inferior would be justified in questioning or even refusing to execute 
such commands, but as long as the orders of the superior are not 
obviously and decidedly in opposition to the law of the land, or to the 
well-known established customs of the army, so long must they meet 
with complete and unhesitating obedience. There is an opinion of Mr. 
JUSTICE Wills to the effect that an officer or soldier acting under orders 
from his superior which are not necessarily or manifestly illegal, would 
be justified. I think the rule a reasonable one, and one which has become 
a well-established principle of law. The well-known principle of criminal 
law demands that there must be some blame- worthy condition of mind, 
some guilty knowledge shown to the Court to justify finding a person 
guilty of a crime. It would shock one's ideas of what is right and just if a 
man were convicted of a crime if there is not blame in some way or other. 
If he did a thing without knowing he was doing wrong, or had reasonable 
grounds for believing that certain facts existed which justified his doing a 
thing, he would be excused on the ground that there was no guilty 
knowledge on his part. I think it is a safe rule to lay down that if a soldier 
honestly believes he is doing his duty in obeying the commands of his 
superior, and if the orders are not so manifestly illegal that he must or 
ought to have known that they were unlawful, the private soldier would 
be protected by the orders of his superior officer." 
I am inclined to think that some portions of these remarks require quali- 






389 

fication. For example, the words: 

"If he did a thing without knowing he was doing wrong ... he would be 
excused" 
would suggest that ignorance of law is an excuse. But, for the most part, this 
statement of the law seems to agree with the views held by many modern 
writers on the subject (see, for example, a statement by Lord Wright in 
1946, L.Q.R., p. 46; Article by Prof. Sack on Punishment of War Criminals 
and the Defence of Superior Orders in 1944, L.W.R., p. 63; Hall, 
International Late (8th Edition, p. 499); Article by J. H. Morgan, K.C., in the 
Quarterly Review, April, 1947, entitled Nuremberg and After. See also 
Digest (50.17.169); Grotiiis, de Jure Belli, Bk. II, Ch. 26; Grueber, Lex 
Aquilia (9.2.37), p. 140; Leyser (Sp. 534) ). 

I think it is clear, however, that Solomon, J., was referring to soldiers 
engaged in military operations, or, at any rate, actually under the command 
of the officer who gave the order, and not to a state of affairs such as existed in 
this camp for prisoners-of-war, where the prisoners were under the command 
of a South African officer and not under the command of the German officer 
who was secretly in hiding in the camp. 

Carlisle, J. , accepted the law laid down in Rex v. Smith, and in seeking to 
apply it made the following remarks: 

"It will be seen from this rule that it is not enough for a soldier to 

honestly believe he is doing his duty in obeying the command of his 

superior. He must, in addition be satisfied that the order is not so 

manifestly illegal as to be unlawful." 

He then came to the conclusion that the order was illegal, and continued: 

"The next question that we have to consider is whether this order was 

so manifestly or obviously illegal that each of the accused must, or ought 

to have known that he was doing wrong in obeying it. We find that the 

answer to that question is in the affirmative. Each of the accused is a man 

of keen intelligence. In the circumstances we find them guilty." 

From these passages it will be seen that the learned Judge took it for 

granted that the accused believed that it was their duty to obey such orders, 

but came to the conclusion that they knew or ought to have known that the 

orders were illegal and, therefore, that their belief was unreasonable or at 

any rate blameworthy, and consequently that it was not a state of mind which 

excused or justified their acts. Consequently, judging their conduct by the 

standard applicable to a soldier who was engaged in military operations or, at 

any rate, under the command of the officer who gave the order, he came to the 

conclusion that they w T ere legally responsible for the death of Haensel. Their 

position, however, so far as legal immunity for crimes committed in 

consequence of orders is concerned, was, in my opinion, less favourable in the 

camp for prisoners-of-war than it would have been if they had been under the 

command of von Lubke. He was in hiding in the camp and had, by South 

African Law T , no authority to give orders to the accused and they were under 

no duty to obey such orders, even if those orders had not been so obviously 

illegal that they should have known them to be illegal. It may, however, be 



390 

that the accused thought that they were bound to obey von Lukbe's orders. 
They say that they thought the law prevailing in the German armed forces 
was applicable to them and that it compelled them to obey von Lubke's order. 
No expert evidence was given to show what the German military law was in 
the situation which arose, but whatever it might have been it did not operate 
in a camp for prisoners-of-war in South Africa. Consequently, even if it be 
accepted that the accused believed that by German law they were bound to 
obey von Lubke's orders, they were mistaken in thinking that the duties 
imposed on them by German law compelled them to take Haensel's life in a 
camp for prisoners-of-war in South Africa. That mistake was a mistake of 
law, and, since it is a recognised principle of our criminal law that ignorance of 
law does not excuse, it follows that, even if it be assumed in their favour that 
in fact they believed that they were bound to obey the orders given by an 
officer, such a belief did not relieve them of criminal responsibility for the 
killing of Haensel. 

I have, in what has been said above, assumed that the accused acted as 
unwilling participants in the killing of Haensel, being compelled thereto by 
what they conceived to be their duty as soldiers. But it is not clear on the 
evidence that the accused were unwilling participants in the homicide, who 
took part in it merely from a sense of duty. The evidence of the accused 
Werner, who was the camp-leader, shows that he regarded Haensel as a 
traitor who had to be dealt with either in the camp or when he returned to 
Germany, that his presence in the camp was a menace to the safety of the 
hidden officers, and that if he could not be removed from the camp he should 
be killed. He tried to procure his removal by reporting to the South African 
sergeant in charge that Haensel's life was in danger, but when no action was 
taken on that report he acquiesced in and assisted at the execution. In the 
circumstances, it is somewhat difficult to come to the conclusion that he was 
an unwilling instrument in the execution, acting solely from a sense of duty, 
induced by the belief that he was bound to obey an order given him by a 
superior officer. 

The evidence of Wallat was given very shortly. He does not say that he took 
part in the killing of Haensel solely because he thought he was bound to obey 
orders, but he does say that he feared that he would be punished if he did not 
obey the orders given to him. 

There is also other evidence tending to show that the accused feared that, if 
they did not obey the orders given them, they would have been regarded as 
traitors and would have run the risk of severe punishment, possibly death, on 
their return to Germany. It was suggested in argument that such a fear of 
punishment on the part of the accused, particularly when such fear was allied 
to an apprehension that they might themselves be killed by the other 
prisoners if they did not assist in killing Haensel justified their acts and 
relieved them of criminal responsibility. This argument is an attempt to 
extend the principle that immunity from criminal liability is sometimes 
granted to an accused person who acts under compulsion or from necessity far 
beyond its commonly recognised limits. There is no evidence of any direct 






391 



threat or compulsion by anyone but merely evidence by the accused of a fear 
of some sort of reprisal. No authority dealing with this aspect of the case was 
quoted by counsel, and I have been unable to find among Roman-Dutch 
writers on criminal law any clear statement of the limits of the immunity. In 
English law it seems clear that the circumstances existing in this case did not 
relieve the accused of criminal responsibility. See Hale, Pleas of the Croivn 
(Vol. 1, sec. 51), and Rex v. Dudley & Stephens (14, Q.B.D. 273). From what 
appears in those authorities it seems that though a man may in self-defence 
kill an aggressor, he cannot, in order to save his own life, kill an innocent 
person. 

The question which was reserved is whether there was legal evidence on 
the record on which the accused could properly be convicted. As there clearly 
was ample evidence the answer to this must be in favour of the Crown. 
Beyond the discussion of the other points contained in these remarks no 
answer can be given to the various contentions put forward on behalf of the 
accused. 

As to the sentence, Carlisle, J., rightly found that mitigating cir- 
cumstances existed which justified the imposition of a comparatively light 
sentence (see v.d. Linden (2-1-5-11) ). He imposed one of five years 
imprisonment. It was contended however that this was excessive and should 
be reduced. We are unable to come to the conclusion that it is excessive and 
see no reason for reducing it. 

Tindall, J. A., and Greenberg, J. A., concurred. 






392 

DOCUMENT NO. 93 

TRIAL OF LIEUTENANT-GENRAL BABA MASAO 

(Australian Military Court, Rabaul, New Briton, 28 May - 2 June 1947) 

SOURCES 
11LRTWC56 
14 Ann. Dig. 205 

NOTE 
This case involved one of the several inhuman "death marches" per- 
petrated by the Imperial Japanese Army during the course of World War II 
(1941-1945). It was the subject of a lengthy statement by the International 
Military Tribunal for the Far East (DOCUMENT NO. 101) under the rubric 
"Death Marches." While the United Nation War Crimes Commission's report 
of the case refers to "British and American prisoners of war," the Tribunal 
refers to "Australian prisoners of war" as having been the victims of the death 
march for which the accused here was charged with responsibility. As the 
accused was tried by an Australian military court, this latter appears more 
likely. (During the hostilities in Korea (1950-1953), the North Korean 
Communists also indulged in the inhuman practice of conducting death 
marches for prisoners of war. (See DOCUMENT NO. 131.) ) 

EXTRACTS 
A. OUTLINE OF THE PROCEEDINGS 

1. THE CHARGE 

The charge alleged that the accused "while commander of armed forces of 
Japan . . . unlawfully disregarded and failed to discharge his duty as a . . . 
commander to control the conduct of the members of his command whereby 
they committed brutal atrocities and other high crimes ..." 
2. The evidence 

The accused was General Officer Commanding the 37th Japanese Army in 
Borneo from December, 1944, until the cessation of hostilities. At the time 
when the accused assumed command of the 37th Army there were about a 
thousand British and American prisoners of war in a prisoner of war camp at 
Sandakan. These prisoners were moved from Sandakan to Ranau (a march of 
165 miles over extremely difficult country) in two parties. One went in 
December, 1944, and the other in May, 1945. Owing to the very meagre 
rations that the prisoners had been receiving over a long period, their state of 
health in December, 1944, was very poor. The order for the march had been 
given before the accused took over command of the 37th Army, but the 
accused admitted that he was aware of the conditions of the prisoners and 
that he ordered a reconnaisance of the country through which the prisoners 
were to march. He failed to alter the orders for the march after this 
reconnaisance. During the march a great number of prisoners died as a result 
of the hardships they had had to suffer, many were severely ill-treated and 



393 

some who could not keep up with the marching column were shot by the 
guards on orders from the officer in charge of the party, who was an officer 
subordinate to the accused. 

The accused received a report of this march early in 1945, in spite of which 
report he ordered the evacuation of the remaining 540 prisoners over the 
same route in May, 1945. This second march proved even more disastrous 
than the first. Only 183 prisoners reached Ranau and of these another 150 
died there shortly after their arrival. By the end of July, only 33 of the whole 
party were alive. They were killed on 1st August, on the orders of an officer 
who was under the command of the accused. 

With regard to the two marches the defence pleaded that the evacuation of 
the prisoner of war camp at Sandakan was an operational necessity as the 
camp was near the seashore and an allied landing was to be anticipated. Allied 
troops did in fact land there in July, 1945, after the camp had been evacuated. 
The defence also pointed out that the Japanese army were themselves short 
of food and medical supplies and many of the guards died on the march as a 
result of the same hardships which the prisoners had suffered. This was not 
denied by the prosecution. 

The accused gave evidence of the measures he had taken to secure 
provisions and medical supplies for the second march and said that he had 
done his best to provide for the prisoners. With regard to the killing of the 33 
survivors at Ranau on 1st August, he claimed that by that time Ranau was cut 
off from his headquarters as a result of the allied landings and that he 
therefore could no longer exercise any effective control over the officers there 
who had previously been under his command. He gave evidence that he did 
not hear of this murder until after the cessation of hostilities. 
3. THE FINDINGS 

The accused was found guilty and sentenced to death by hanging. The 
sentence was executed. 



394 

DOCUMENT NO. 94 

U.S. v. KARL BRANDT ET AL 

(THE MEDICAL CASE) 

(Case No. 1, U.S. Military Tribunal, Nuremberg, 19 August 1947) 

SOURCE 
2TWC171 

NOTE 

Among the numerous unpleasant novel ideas first adopted by the Nazis 
during the course of World War II (1939-1945) was that of using prisoners of 
war and other helpless individuals as guinea pigs for medical experiments, 
many of which really had little or no relationship to valid scientific research. 
In passing on this subject in Case No. 1 (aptly titled "The Medical Case") of 
the 12 "Subsequent Proceedings" conducted by U.S. Military Tribunals at 
Nuremberg, the Tribunal enumerated the requirements for "permissible 
medical experiments." (It should be noted again (see DOCUMENT NO. 91) 
that although these Military Tribunals were established by the military 
authorities in the U.S. Zone of Occupation of Germany pursuant to Control 
Council Law No. 10 (DOCUMENT NO. 73), the judges composing them were 
American civilians, mostly from the benches of state courts.) Since the end of 
World War II and the trials which condemned such medical experimentation 
as a war crime, Article 13 of the 1949 Geneva Prisoner-of-War Convention 
(DOCUMENT NO. 108) has been drafted and adopted with a provision 
specifically prohibiting this practice; and Article 130 thereof makes "inhuman 
treatment, including biological experiments," a grave breach of the Con- 
vention. See also Articles 11 and 85 of the 1977 Protocol I (DOCUMENT NO. 
175) 

EXTRACTS 

THE PROOF AS TO WAR CRIMES AND CRIMES 

AGAINST HUMANITY 

Judged by any standard of proof the record clearly shows the commission of 
war crimes and crimes against humanity substantially as alleged in counts 
two and three of the indictment. Beginning with the outbreak of World War 
II criminal medical experiments on non-German nationals, both prisoners of 
war and civilians, including Jews and "asocial" persons, were carried out on a 
large scale in Germany and the occupied countries. These experiments were 
not the isolated and casual acts of individual doctors and scientists working 
solely on their own responsibility, but were the product of coordinated 
policy-making and planning at high governmental, military, and Nazi Party 
levels, conducted as an integral part of the total war effort. They were 
ordered, sanctioned, permitted, or approved by persons in positions of 
authority who under all principles of law were under the duty to know about 
these things and to take steps to terminate or prevent them. 



395 

PERMISSIBLE MEDICAL EXPERIMENTS 

The great weight of the evidence before us is to the effect that certain types 
of medical experiments on human beings, when kept within reasonably 
well-defined bounds, conform to the ethics of the medical profession 
generally. The protagonists of the practice of human experimentation justify 
their views on the basis that such experiments yield results for the good of 
society that are unprocurable by other methods or means of study. All agree, 
however, that certain basic principles must be observed in order to satisfy 
moral, ethical and legal concepts: 

1. The voluntary consent of the human subject is absolutely essential. 
This means that the person involved should have legal capacity to give 

consent; should be so situated as to be able to exercise free power of choice, 
without the intervention of any element of force, fraud, deceit, duress, 
over-reaching, or other ulterior form of constraint or coercion; and should 
have sufficient knowledge and comprehension of the elements of the subject 
matter involved as to enable him to make an understanding and enlightened 
decision. This latter element requires that before the acceptance of an 
affirmative decision by the experimental subject there should be made known 
to him the nature, duration, and purpose of the experiment; the method and 
means by which it is to be conducted; all inconveniences and hazards 
reasonably to be expected; and the effects upon his health or person which 
may possibly come from his participation in the experiment. 

The duty and responsibility for ascertaining the quality of the consent rests 
upon each individual who initiates, directs or engages in the experiment. It is 
a personal duty and responsibility which may not be delegated to another 
with impunity. 

2. The experiment should be such as to yield fruitful results for the good of 
society, unprocurable by other methods or means of study, and not random 
and unnecessary in nature. 

3. The experiment should be so designed and based on the results of animal 
experimentation and a knowledge of the natural history of the disease or 
other problem under study that the anticipated results will justify the 
performance of the experiment. 

4. The experiment should be so conducted as to avoid all unnecessary 
physical and mental suffering and injury. 

5. No experiment should be conducted where there is an a priori reason to